the function of defining and holding the balance between the two divisions, the nation and the states. This duty is clearly placed on the courts by the Constitution. It is also universally regarded as the duty of courts to hold legislatures and executives within the bounds defined by constitutions. This authority is not as a rule granted specifically to courts. It was assumed by the judges in the early days of the Republic as a duty, on the theory that democratic government under written constitutions required it. It was agreed that written constitutions were fundamental acts which should be strictly upheld, that the powers of government should be limited and defined, and, finally, that it was a matter for legal determination whether the constitution had been violated. This principle, although almost universally acted upon, has rarely been recognized by statutes or constitutions. On account of the high authority exercised by the courts, the government of the United States has been called an "aristocracy of the robe."

THE DEVELOPMENT OF THE FEDERAL CONSTITUTION BY DECISIONS OF THE SUPREME COURT

It is generally conceded, then, that among all the features of the Constitution of the United States the Supreme Court is the most unusual and its success the most noteworthy. But the Supreme Court was not an important body when the Constitution was formed, and very few cases were brought to the court in the first years of its existence. The state courts were regarded as superior to the Federal courts, and after ten years' service Chief-Justice Jay resigned with the observation that he did not regard the office of sufficient importance to call for the ability of able men. Justices looking for preferment decided to accept positions on the state judiciaries instead of the Federal court. It was not until the accession to the bench of John Marshall and the announcement of the independent position of the court, with the right to declare legislative acts

invalid, in the famous Marbury vs. Madison case, that the Supreme Court began to establish its right and position as an independent branch of the Federal government.

With the right asserted to a position independent from that of Congress, it remained for the Supreme Court to establish its power and authority as over against the state judiciaries and to uphold the powers of the Federal government as against state action. This position was maintained in a series of striking precedents delivered by ChiefJustice Marshall and other justices of the Supreme Court in the years from 1810 to 1825. Chief among these precedents are Martin vs. Hunter's Lessee and Cohens vs. Virginia, in which the Supreme Court resisted the right of final judgment in the state courts and thereby established the doctrine of Federal supremacy in the determination of national constitutional questions. Other precedents of importance are McCulloch vs. Maryland, Brown vs. Maryland, Dartmouth College vs. Woodward, and Gibbon vs. Ogden. Each of these cases is a landmark in the development of the Federal government in the United States.

McCulloch vs. Maryland.-In McCulloch vs. Maryland, an act passed by the legislature of Maryland to tax the branch of the national bank of the United States was under review. The tax rate was so high as to render it impossible for the bank to do business in the state. In the decision of the court, which is now quoted extensively in all federal governments, particularly in Canada, Australia, and South Africa, as well as in South American countries, Chief-Justice Marshall laid down the following principles:

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was pending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.

Among the enumerated powers we do not find that of establishing a

bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the Tenth Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people"; thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. . . .

Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation" we find the great powers to lay and collect taxes, to borrow money, to regulate commerce, to declare and conduct a war, and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.

Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed. . . .

We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. 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, but consist with the letter and spirit of the Constitution, are constitutional.

If a corporation may be employed indiscriminately with other means to carry into execution the powers of the government no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one must be within the discretion of Congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. . .

Were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.1

The decision in this case indicated that the Federal government proposed to apply the doctrine of implied powers, thus giving to the federal departments authority to carry out such acts and perform such functions as would seem best for the nation, without any express provision in the formal law. Chief-Justice Marshall adopted Hamilton's criterion of constitutionality.

This criterion [said Hamilton] is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have any obvious relation to that end, and is not forbidden by any particular provision of the constitution, it may safely be deemed to come within the compass of the national authority.2

1 4 Wheaton 316, at 405-421.

Hamilton's Works (Edition 1851), vol. iv, pp. 104 ff,

Once the end is clearly comprehended within the fundamental law, then it is contended that any means which may be needful, requisite, incidental, or useful may be regarded as fully authorized. The decision in McCulloch vs. Maryland also provided for the principle, which has been consistently upheld in the United States, that there are two distinct governmental entities, Federal government and the state governments, that each must be protected from interference by the other, and that any effort to tax the instrumentalities of one of these entities by the other must be declared null and void. This doctrine, which is known under the name of "implied prohibitions," has come to be regarded as one of the fundamental principles of Federal government in the United States and has rendered it impossible for the state governments to tax Federal officials and instrumentalities or for the Federal government to tax state officials and instrumentalities.

Brown vs. Maryland. When the state of Maryland attempted to place a tax upon articles imported into the state in such a way as to prevent the free access of products and their entrance into the state for commercial purposes, again the Chief Justice laid down the principle that as to the control of commerce, the Federal Constitution requires that no state shall be in a position to prohibit free access of articles and goods into a state. As a consequence, the state cannot legislate with regard to the commerce until an article has entered the state, has been opened from the original package, and has become identified with the ordinary goods and products of the state. This principle has come to be regarded as "the original package principle," and has had a great influence upon the attempts of the states to regulate and control interstate commerce. The original-package case has occasioned a great many difficulties; and while it has resulted in freeing commercial dealings as between the states, it has created some serious obstacles which have had to be removed by congressional 112 Wheaton 419.