confiscability of the private property of an enemy on land, by judicial proceedings, in the absence of an Act of Congress expressly authorizing such proceedings.  On the theory that war renders all property of the enemy liable to confiscation, Mr. Justice Story, with the concurrence of one other member of the Court, maintained that the Act of Congress declaring war of itself gave ample authority for the purpose.  The majority held otherwise, and Marshall delivered the opinion.  Referring to the practice of nations and the writings of publicists, he declared that, according to “the modern rule,” “tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated;” that “this rule” seemed to be “totally incompatible with the idea that war does of itself vest the property in the belligerent government;” and, consequently, that the declaration of war did not authorize the confiscation.  Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that “war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found,” and that the “mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice,” though they “will more or less affect the exercise of this right,” “cannot impair the right itself.”  Nor were the two declarations quite consistent.  The supposition that usage may render unlawful the exercise of a right, but cannot impair the right itself, is at variance with sound theory.  Between the effect of usage on rights, and on the exercise of rights, the law draws no precise distinction.  A right derived from custom acquires no immutability or immunity from the fact that the practices out of which it grew were ancient and barbarous.  We may therefore ascribe the dictum in question to the influence of preconceptions, and turn for the true theory of the law to an opinion of the same great judge, delivered twenty years later, in which he denied the right of the conqueror to confiscate private property, on the ground that it would violate “the modern usage of nations, which has become law” (U.S. v.  Percheman).

United with extraordinary powers of mind, we find in Marshall the greatest simplicity of life and character.  In this union of simplicity and strength he illustrated the characteristics of the earlier period of our history.  He has often been compared with the great judges of other countries.  He has been compared with Lord Mansfield; and although he did not possess the extensive learning and elegant accomplishments of that renowned jurist, the comparison is not inappropriate when we consider their breadth of understanding and powers of reasoning; and yet Mansfield, as a member of the House of Lords, defending the prerogatives of the Crown and Parliament, and Marshall as an American patriot, sword in hand, resisting in the field the assumptions