¹ 26 U.S. (1 Pet.) 511 (1828).

² Id. at 545.

³ Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch) 191 (1815).

⁴ Id. at 198.

⁵ The Appollon, 22 U.S. (9 Wheat.) 362, 371 (1824).

⁶ See B. Ziegler, The International Law of John Marshall 66–67 (1939).

⁷ See The Marianna Flora, 24 U.S. (11 Wheat.) 1, 43 (1826).

⁸ The Adventure, 1 F. Cas. 202, 205 (C.C.D. Va. 1812) (No. 93).

⁹ The Antelope, 23 U.S. (10 Wheat.) 66, 122–23 (1825).

¹⁰ J. Story, Piracy and the Slave Trade (charge to the grand jury in the circuit court at Portland, Me., May 8, 1820), reprinted in The Miscellaneous Writings of Joseph Story 122, 129 (W. Story ed. 1852).

¹¹ Id. at 130.

¹² Act of Apr. 30, 1790, ch. 9, §8, 1 Stat. 113–14.

¹³ 16 U.S. (3 Wheat.) 610 (1818).

¹⁴ One of the ways a lower federal court case could reach the Supreme Court during Marshall’s tenure was through the device of a certificate of division, issued by the two judges (one a Supreme Court Justice sitting on circuit and the other the local federal district judge) who composed the circuit court. Certificates of division listed questions of law on which the circuit judges disagreed, necessitating resolution by the Supreme Court. On many occasions the certificate of division was referred to the Supreme Court without there being a genuine division of views: the Supreme Court Justice could elect this disposition if he wanted full review of a question or questions raised in the case. When no genuine division occurred, the certificate of division was designated “pro forma.” Story regularly employed the pro forma division technique to secure review of legal questions in which he had an interest. For more detail on the certificate of division process, see G. E. White, The Marshall Court and Cultural Change, 1815–35, at 164–80 (1988).

¹⁵ 1 Stat, at 113–14.

¹⁶ Palmer, 16 U.S. at 639.

¹⁷ J. Q. Adams, diary entry for May 11, 1819, in 4 The Memoirs of John Quincy Adams 363 (C. Adams ed., 12 vols., 1874–77).

¹⁸ U.S. (5 Wheat.) 144 (1820).

¹⁹ Id. at 147.

²⁰ Id. at 152.

²¹ 18 U.S. (5 Wheat.) 153 (1820).

²² Act of Mar. 3, 1819, ch. 77, §5, 3 Stat. 513–14.

²³ Smith, 18 U.S. at 157.

²⁴ Id. at 161, 162.

²⁵ “Silent acquiescence” in a majority decision by a dissenting Justice was a common practice during the Marshall Court. The practice, whose purpose was to preserve the appearance of unanimity or near-unanimity for Court decisions, apparently originated very early in Marshall’s tenure. A letter from Justice William Johnson to Thomas Jefferson, written in December 1822, stated that on coming to the Court in 1805, Johnson found that Marshall was writing nearly all the opinions for the Court, including those “when contrary to his own judgment & vote.” When Johnson protested against this practice, he met with considerable resistance, but persisted until he “got them to adopt the course they now pursue, which is to appoint someone to deliver the opinion of the majority, but leave it to the discretion of the rest of the judges to record their opinions or not.” Johnson to Jefferson, Dec. 10, 1822, Thomas Jefferson Papers, Library of Congress, quoted in G. E. White, supra note 14, at 186.

²⁶ 18 U.S. at 182.

²⁷ A characteristic of Story’s writings, both as a judge and as an author of treatises, was the argument from scholarly consensus. Statements such as those quoted supra, text at note 24, were common throughout his work. A modern reader might underestimate, however, the degree to which Story’s invocations of “the general practice[s] of all nations,” as reflected in the standard scholarly sources of his age, were reflexively adopted by his contemporaries. While Story’s contemporaries understood the rhetorical and adversarial dimensions of his work, they also, to a great extent, shared his views on a number of “first principles” of law and social organization.

²⁸ The Marshall Court’s jurisprudential universe was one in which an opposition between “natural law” and “positive laws” had not fully surfaced. The Marshall Court was in this sense “premodern” in its epistemology, however much some of its decisions employ language and analysis that strike a modern reader as philosophically familiar. For more on this general theme, see G. E. White, supra note 14, at 129–31, 154–56, 675–740.