to any one who should attempt its execution. Actual collision between the state and the federal authority, however, was avoided by the adoption of a constitutional amendment declaring that the judicial power of the United States should not be construed to extend to suits brought against the States by citizens of other States.

From this dispute the Federal Government emerged clearly the winner, it being established that only by an express constitutional amendment were the States to be released from being dragged unwillingly to the bar of a federal tribunal.

In 1794 came the next threat of resistance to the Federal Government. A considerable number of the people of western Pennsylvania refused to pay the excise upon whisky levied by an act of Congress of 1791. At the call of the President of the United States the militia of Pennsylvania took the field, whereupon, overawed by this display of force, the resistance to the execution of the federal law melted away. Thus again was federal authority maintained.

In 1798-99 were issued by the legislatures of two of the States Resolutions asserting that the Federal Union was based upon a compact between the States, and very nearly, if not quite, asserting the doctrine that a State had the right to declare void and refuse cbedience to laws which it should deem unwarranted by the terms of that compact. The effect of these Virginia and Kentucky Resolutions was, however, to strengthen the national theory, for no other State recognized their doctrines as correct, but, upon the contrary, most of the other Commonwealths by resolu

tion explicitly declared them dangerous or erroneous. Furthermore, the very acts of Congress against which these Resolutions were directed were afterwards enforced in Virginia without resistance, and that, too, in a most offensive manner.1

In 1801 the strict constructionist Republicans under Jefferson came into power, but, so strong was the national drift that his administration witnessed the annexation of the vast Louisiana Territory and the enactment of the Cumberland Road Bill-both measures requiring for their constitutionality a very elastic interpretation of the powers of the Federal Government.

In 1803 came the decision of the Supreme Court of the United States in the famous case of Marbury v. Madison (1 Cr., 137), in which, for the first time, an act of Congress was explicitly declared unconstitutional and therefore void of legal force. The great significance of the decision consisted not simply in that it upheld the power of the federal judiciary as opposed to that of the federal legislature, but that it pointed out that the tribunal to which resort should be had for an authoritative and final decision in the case of a federal enactment of doubtful constitutionality was not to the member States of the Union but to the federal Supreme Court.

In this case the imperative character of the Constitution was declared in the following words: "That the people have an original right to establish for their

1 For example, in the trial and conviction of Callender. For his alleged unjudicial conduct in this case the presiding federal judge, Chase, was afterwards impeached but acquitted.

future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And, as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislatures are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations may, at any time, be passed by those intended to be restrained?”

In the next year, 1804, the Supreme Court, in the case of The United States v. Fisher (2 Cr., 358), laid down in the clearest manner possible the doctrine that the Federal Government, in the exercise of the powers specifically granted to it, is not restricted to the employment of simply those means that are indispensably necessary, but may make use of any means that are calculated to assist in attaining an end specifically authorized by the Constitution. "It would be incorrect and would produce endless difficulties," says the Court, "if the opinion should be maintained that

no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said, with respect to each, that it was not necessary because the end might be reached by other means. Congress must possess the choice of means, and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution.

Five years later, in 1809, was decided the case of The United States v. Peters (5 Cr., 115),-a case which involved a direct contest of power and authority between the Federal Government and the State of Pennsylvania. A vessel, the sloop Active, had been condemned and sold in 1777 as a prize by the admiralty court of Pennsylvania. Upon appeal to the Committee of Appeals of the Continental Congress this decision had been overruled and the state marshal forbidden to pay over the proceeds to the state court. Notwithstanding this order, however, the money was paid over, and ultimately found its way into the state treasury. In 1803 suit was brought in a federal District Court to recover this money from the estate of the state treasurer, Rittenhouse, then deceased, and judgment was obtained. Thereupon the legislature of Pennsylvania passed an act denying the authority of the federal court in the premises, and directing the state executive to prevent, by force, if necessary, the execution of the federal decree. Repeated efforts to obtain a peaceful settlement having failed, a writ of mandamus was asked for from the Supreme Court of the United States to compel the

district judge to enforce his judgment. In passing upon the request thus raised, Chief Justice Marshall clearly recognized that the very existence of the National Government as a competent central authority was involved. "If," he said, "the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under these judgments, the Constitution itself becomes a solemn mockery; and the Nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all, and the people of Pennsylvania, not less than the citizens of every other State, must feel a deep interest in resisting principles so destructive of the Union and in asserting consequences so fatal to themselves." "The act in question," continued the Chief Justice," does not, in terms, assert the universal right of the State to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence, the execution of which it prohibits, was rendered in a cause over which the federal courts have no jurisdiction. If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the Constitution in the several state legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of the nation... the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question." After examining and refuting the claim that the federal district court did not have jurisdiction, the Chief Justice declared that