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 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