e law on
the subject at the present day.

By this decision, the rightfulness or the wrongfulness of the capture
and condemnation of the "Exchange" was left to be determined by the two
governments as a political question. In this respect Marshall
maintained, as between the different departments of government, when
dealing with questions of foreign affairs, a distinction which he
afterwards sedulously preserved, confining the jurisdiction of the
courts to judicial questions. Thus he laid it down in the clearest terms
that the recognition of national independence, or of belligerency, being
in its nature a political act, belongs to the political branch of the
government, and that in such matters the courts follow the political
branch. Referring, on another occasion, to a similar question, he said:
"In a controversy between two nations concerning national boundary, it
is scarcely possible that the courts of either side should refuse to
abide by the measures adopted by its own government.... If those
departments which are entrusted with the foreign intercourse of the
nation, which assert and maintain its interests against foreign powers
have unequivocally asserted its rights of dominion over a country of
which it is in possession, and which it claims under a treaty; if the
legislature has acted on the construction thus asserted, it is not in
its own courts that this construction is to be denied." (Foster
_v_. Neilson).

In the case of the American Insurance Company _v_. Canter, he asserted
the right of the government to enlarge the national domain, saying: "The
Constitution confers absolutely on the government of the Union the power
of making war and of making treaties; consequently, that government
possesses the power of acquiring territory, either by conquest or by
treaty." But he held the rights of private property in such case to be
inviolate (U.S. _v_. Percheman). The most luminous exposition of
discovery as a source of title, and of the nature of Indian titles, is
to be found in one of his opinions (Johnson _v_. McIntosh).

A fundamental doctrine of international law is that of the equality of
nations. If a clear and unequivocal expression of it be desired, it may
be found in the opinion of Marshall in the case of "The Antelope." "No
nation," he declared, "can make a law of nations. No principle is more
universally acknowledged than the perfect equality of nations. Russia
and Geneva have equal rights." And when the r