wise, with the exercise by the Federal Government of any of its powers; and third, because of the reasoning by which these two principles were sought to be proved.

The principle of the loose construction of the powers of Congress was declared in the following language. After speaking of the powers expressly given to Congress by the Constitution, Marshall said: "It must have been the intention of those who gave these powers to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and, consequently, to be adapted to various crises of human affairs. To have prescribed the means by which government should in all future time execute its powers would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those only without which the power given would be nugatory, would have been to deprive the executive of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. Let the end be legitimate, let it be within the scope of the Constitution, and all means

which are appropriate, which are plainly adapted to that end, which are not prohibited, are consistent with the letter and spirit of the Constitution, are constitutional."

The case of McCulloch v. Maryland had arisen out of an attempt on the part of the State of Maryland to tax the United States Bank which the Federal Government had chartered to assist it in the conduct of its fiscal affairs. Having demonstrated the constitutionality of the establishment of this institution, the attempt of a State to control it, directly or indirectly, by taxing or otherwise, was explicitly denied by the Court in the following words: "The government of the United States, though limited in its powers, is supreme within its sphere of action. . . . The nation, on those subjects on which it can act, must necessarily bind its component parts. . . . The sovereignty of a State extends to everything which exists by its own. authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. . . . The court has bestowed on this subject the most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the General Government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."

Turning now to the reasoning by which the Court sustained the positions it took, we find a very strongly nationalistic interpretation given both to the process by which the federal Constitution was adopted and to the character of the government provided for by it. After adverting to the fact that the counsel for the State of Maryland had deemed it of importance, in the construction of the Constitution, to consider that instrument "not as emanating from the people, but as the act of sovereign and independent States," and the powers of the General Government as "delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion," Marshall declared: "It would be difficult to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might be submitted to a convention of delegates, chosen in each State, by the people thereof, under the recommendation of its legislature for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention. It is true they assembled in their several States, and where else could they have assembled? No political

dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. . . . The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution when thus adopted was of complete obligation, and bound the state sovereignties."

In 1816 was decided by the Supreme Court of the United States the case of Martin v. Hunter's Lessee (1 Wh., 304), in which Justice Joseph Story prepared the opinion, and, in 1821, the case of Cohens v. Virginia (6 Wh., 264), in which Marshall spoke for the Court. These two cases turned upon the efforts of the State of Virginia to release herself from what she deemed the unconstitutional humiliation of having decisions of her highest court reviewed in the Supreme Court of the United States, when the decisions of her court were adverse to alleged federal rights. Appeals in such cases from the highest courts of the States to the federal tribunal had been provided for, as has been before noted, by the famous twenty-fifth section of the Judiciary Act passed in 1789.

The constitutionality of this section had been, and later still was, strenuously resisted by the upholders of so-called "States'-Rights," and well they might resist it, for to give to federal judges the final decision in all cases of conflict between state and federal rights, even when such conflicts were between citizens of the same State and litigated in the courts of that State, was certainly to ascribe a paramountcy to the National Government. Calhoun saw this clearly enough and declared: "The effect of this is to make the government of the United States the sole judge, in the last resort, as to the extent of its powers, and to place the States and their separate governments and institutions at its mercy. It would be a waste of time to undertake to show that an assumption that would destroy the relation of coördinates between the government of the United States and those of the several States-which would enable the former, at pleasure, to absorb the reserved powers and to destroy the institutions, social and political, which the Constitution was ordained to establish and protect-is wholly inconsistent with the federal theory of the government, though in perfect accordance with the national theory. Indeed, I might go further and assert that it is, of itself, all sufficient to convert it into a national, consolidated government."

"The government of the United States," said the counsel for Virginia in the case of Cohens v. Virginia, "operates directly upon the people, and not at all upon the state governments. The state governments 1 See, for instance, Calhoun's "Discourse on the Constitution and Government of the United States," Works, I, 318-340.