CHAPTER III
INTERNATIONAL LAW
It was Marshall's lot in more than one case to blaze the way in the establishment of rules of international conduct. (John Bassett Moore.)
The defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people. (Judge William H. Cabell of the Virginia Court of Appeals.)
I look upon this question as one which may affect, in its consequences, the permanence of the American Union. (Justice William Johnson of the Supreme Court.)
While Marshall unhesitatingly struck down State laws and shackled State authority, he just as firmly and promptly upheld National laws and National authority. In Marbury vs. Madison he proclaimed the power of National courts over Congressional legislation so that the denial of that power might not be admitted at a time when, to do so, would have yielded forever the vital principle of Judiciary supervision.[300] But that opinion is the significant exception to his otherwise unbroken practice of recognizing the validity of acts of Congress.
He carried out this practice even when he believed the law before him to be unwise in itself, injurious to the Nation, and, indeed, of extremely doubtful constitutionality. This course was but a part of Marshall's Nationalist policy. The purpose of his life was to strengthen and enlarge the powers of the National Government; to coördinate into harmonious operation its various departments; and to make it in fact, as well as in principle, the agent of a people constituting a single, a strong, and efficient Nation.
A good example of his maintenance of National laws is his treatment of the Embargo, Non-Importation, and Non-Intercourse Acts. The hostility of the Chief Justice to those statutes was, as we have seen, extreme; the political party of which he was an ardent member had denounced them as unconstitutional; his closest friends thought them invalid. He himself considered them to be, if within the Constitution at all, on the periphery of it;[301] he believed them to be ruinous to the country and meant as an undeserved blow at Great Britain upon whose victory over France depended, in his opinion, the safety of America and the rescue of imperiled civilization.
Nevertheless, not once did Marshall, in his many opinions, so much as suggest a doubt of the validity of those measures, when cases came before him arising from them and requiring their interpretation and application. Most of these decisions are not now of the slightest historical importance.[302] His opinions relating to the Embargo are, indeed, tiresome and dull, with scarcely a flash of genius to brighten them. Now and then, but so rarely that search for it is not worth making, a paragraph blazes with the statement of a great principle. In the case of the Ship Adventure and Her Cargo, one such statesmanlike expression illuminates the page. The Non-Intercourse Law forbade importation of British goods "from any foreign port or place whatever." The British ship Adventure had been captured by a French frigate and given to the master and crew of an American brig which the Frenchmen had previously taken. The Americans brought the Adventure into Norfolk, Virginia, and there claimed the proceeds of ship and cargo. The United States insisted that ship and cargo should be forfeited to the Government because brought in from "a foreign place." But, said Marshall on this point: "The broad navigable ocean, which is emphatically and truly termed the great highway of nations, cannot ... be denominated 'a foreign place.'... The sea is the common property of all nations. It belongs equally to all. None can appropriate it exclusively to themselves; nor is it 'foreign' to any."[303]