In the decision of prize cases, Marshall, unlike some of his associates, was disposed to moderate the rigor of the English doctrines, as laid down by Sir William Scott.  “I respect Sir William Scott,” he declared on a certain occasion, “as I do every truly great man; and I respect his decisions; nor should I depart from them on light grounds; but it is impossible to consider them attentively without perceiving that his mind leans strongly in favor of the captors.”  This liberal disposition, blended with independence of judgment, led Marshall to dissent from the decision of the court in two well-known cases.  In one of these, which is cited by Phillimore as the “great case” of “The Venus,” it was held that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy’s property, even though it was shipped before he had knowledge of the war.  Marshall dissented, maintained that a mere commercial domicile ought not to be presumed to continue longer than the state of peace, and that the fate of the property should depend upon the conduct of the owner after the outbreak of the war, in continuing to reside and trade in the enemy’s country or in taking prompt measures to return to his own.  In the other case—­that of the “Commercen”—­he sought to disconnect the war in which Great Britain was engaged on the continent of Europe from that which she was carrying on with the United States, and to affirm the right of her Swedish ally to transport supplies to the British army in the Peninsula without infringing the duties of neutrality towards the United States.  As to his opinion in the case of “The Venus,” Chancellor Kent declared that there was “no doubt of its superior solidity and justice;” and it must be admitted that his opinion in the case of the “Commercen,” rested on strong logical grounds, since the United States and the allies of Great Britain in the war on the Continent never considered themselves as enemies.

It is not, however, by any means essential to Marshall’s pre-eminence as a judge, to show that his numerous opinions are altogether free from error or inconsistency.  In one interesting series of cases, relating to the power of a nation to enforce prohibitions of commerce by the seizure of foreign vessels outside territorial waters, the views which he originally expressed in favor of the existence of such a right appear to have undergone a marked, if not radical, change, in favor of the wise and salutary exemption of ships from visitation and search on the high seas in time of peace (Rose v.  Himely),—­a principle which he affirmed on more than one occasion (The Antelope).  In the reasoning of another case, though not in its result, we may perhaps discern traces of the preconceptions formed by the advocate in the argument concerning the British debts.  This was the case of Brown v.  United States, which involved the question of the