and the right of judicial interpretation, if such frame or form of government is to preserve that proper and relative balance and to establish that rightful proportion of power among the various essential divisions and departments of government, deemed not only by philosophic students, but found by history and by years of practical experience, to be necessary to liberty under the law.

McCULLOCH v. STATE OF MARYLAND.

By William Marshall Bullitt.

Ladies and Gentlemen:

I have been requested to review the case of McCulloch v Maryland. Those of us who believe in the constitutional principles of John Marshall can not fail to have observed of late years evidences of dissent of a more or less serious nature from certain propositions which are particularly associated with his name. The governors of a number of states have, in their official messages, urged their respective legislatures to petition Congress for protection against the "aggressions of the Federal judiciary;" at least one state legislature has petitioned Congress to that effect; the president of a State Bar Association has recently made a bitter attack upon pretty much the whole system of Federal jurisprudence; while a general denunciation of the Supreme Court and a wholesale onslaught upon the inferior Federal courts have been a large part of the stock in trade of most of the campaign orators for one of the great political parties during the last five years.

This dissatisfaction is traceable more directly to the application of the principles established in McCulloch v. Maryland than to any other one case ever decided by the Supreme Court.

The facts in that case were very simple:

In the year 1816 Congress chartered the Bank of the United States, which opened a branch in the city of Baltimore. In 1818 the Maryland legislature passed an act imposing a tax upon the notes of any such bank. The Bank of the United States failing to pay the tax, an action was brought against its cashier, McCulloch, to recover the penalty prescribed by the act.

The Maryland Court of Appeals affirmed a judgment against McCulloch, who sued out a writ of error from the Supreme Court.

The government of the United States directed the Attorney General to appear for McCulloch, and this is, I believe, the first instance in which the Supreme Court relaxed its rule of hearing but two counsel on a side.

On March 7, 1819, the judgment of the state court was reversed in an opinion by Chief Justice Marshall. The specific points decided were: First, that Congress had the power to incorporate a bank. Second, that the state of Maryland could not tax its operations, and, therefore, that the judgment against McCulloch was erro

neous.

This decision was a reaffirmation of Fletcher v. Peck, and settled once for all that the Supreme Court claimed and would exercise the right to declare void any state statute that was repugnant to the Constitution of the United States.

The opinion is truly great. Not an authority is cited save the Constitution itself; but as you read it every sentence tells, and (in my judgment) far more than by the great speeches of Webster are you convinced of the true

nature of the American Constitution. The words are mostly of Anglo-Saxon roots; the sentences are not long; the illustrations are as simple as the style, while the logic is irresistible.

I have selected this case for a brief review because the development of its principles has made the United States more than a mere league of States; has made it in every sence a nation with all the attributes of sovereignty; and because it has likewise been the occasion for the criticisms to which I have alluded.

In the closing sentences of his "Vita Nuova," the greatest of the Florentines, a man who in the intensity of his political views was not unlike Marshall, declared that he would write no more of his blessed lady until he could write of her such as had never before been written of any woman. Conscious of his power, he fulfilled that prediction in the "Divine Comedy." Marshall was equally conscious of the importance of the decision he was to render and of its far-reaching effect.

In its opening sentences he said that the conflicting powers of the national government and of its members were to be discussed in a way that might essentially influence its great operations. "No tribunal," he said, "can approach such a question without a deep sense of its importance and of the awful responsibility involved in its decision."

Discussing the nature of the Constitution and the government formed by it, he declared that our government did not derive its power from any action of sovereign and independent states, but, on the contrary, that it proceeded directly from the people; that it was ordained

and established in the name of the people, and was emphatically and truly a government of the people, superior to the states and in every respect binding upon them to the full extent of the powers conferred by the Constitution. The adoption of that view has made us a sovereign nation instead of a weak confederacy.

The process of reasoning by which he arrived at the conclusion that Congress could charter a bank, and laid the foundation for the whole theory of implied powers, is very interesting.

The Constitution does not in terms give Congress the power to create a corporation, but neither does it exclude implied powers. But Marshall pointed out that that was no reason to say they might not exist; for a constitution is not supposed to contain a complete schedule of everything that may be done under it including an enumeration of all the means for its execution. His language is: "Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." Congress was expressly given the great powers to tax, to borrow, to regulate commerce, and to make war. The external relations of our country and a large part of our internal affairs were confided to the care of Congress. Therefore, Marshall concluded that if our Constitution was to be more than a "splendid bauble" Congress must have ample means to carry those great powers into effective execution.

The power to create a corporation is not an end in itself, but only means for the accomplishment of some