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 of imperial power,
represent opposite conceptions. He has been compared with Lord Eldon;
and it may be that in fineness of discrimination and delicate
perceptions of equity he was excelled by that famous Lord Chancellor;
and yet no greater contrast could be afforded than that of Eldon's
uncertainty and procrastination on the bench with Marshall's bold and
masterful readiness. He has been compared with Lord Stowell, and it may
be conceded that in clearness of perception, skill in argument, and
elegance of diction, Lord Stowell has seldom if ever been surpassed. And
yet it may be said of Marshall that, in the strength and clearness of
his conceptions, in the massive force and directness of his reasoning,
and in the absolute independence and fearlessness with which he
announced his conclusions, he presents a combination of qualities which
not only does not suffer by any comparison, but which was also
peculiarly his own.

Mr. Justice Miller once declared that the Supreme Court of the United
States was, "so far as ordinary forms of power are