In The United States v. Schooner Sally of Norfolk, the Supreme Court was asked to decide whether a vessel could be seized and condemned as a prize of war for violating the Embargo Act of 1807. The court held that such an act did not constitute an offense against which any penalty or forfeiture could be imposed by law, and therefore no seizure or condemnation was permissible under international law. In its decision, the court noted that while Congress had enacted laws prohibiting certain acts in relation to foreign nations during times of peace, it had not done so with respect to vessels engaged in commerce between ports within the United States during times of war. As such, there were no legal grounds upon which a vessel could be seized and condemned as a prize for violating those laws.

In the case of The United States v. Schooner Sally of Norfolk, Chief Justice Marshall delivered a dissenting opinion in which he argued that the court should not have taken jurisdiction over this particular case. He believed that it was an issue for Congress to decide and that the court had no authority to make a ruling on it. Furthermore, he noted that there were several other cases where similar issues had been decided by Congress instead of by courts and thus felt strongly about his position. In conclusion, Chief Justice Marshall disagreed with the majority opinion because he did not believe it was within their power or authority as judges to rule on such matters; rather they should leave them up to Congress who is better equipped to handle them due its legislative powers.