case, infra, Vol. I., p. 68), and by his conduct while presiding at the trial of Aaron Burr for treason (see note in regard to that trial, infra, Vol. I., p. 100), in refusing to yield to the popular demand for a conviction, and particularly in issuing a subpoena to Jefferson to appear before him; but neither of those cases decided any fundamental question, and, save Marbury v. Madison, Marshall delivered no constitutional opinion of note during Jefferson's administrations.

It is not correct to suppose that Marshall's opinions had triumphed, or that his doctrines of constitutional law were accepted, in that time. Marbury had never applied for his writ of mandamus and had never obtained his office, and the co-ordinate branches of government had never accepted the power of the Supreme Court to pass on their acts; one great thing had been accomplished, all efforts of Jefferson and the Republicans to control the judiciary had failed, but the real power of the Supreme Court had not been exercised, and Marshall had not set out his scheme of constitutional government.

In the years before the War of 1812, the fundamental Republican doctrine of strict construction of the constitution had been departed from by the Republicans themselves in the actual conduct of the national affairs; extensive foreign relations were entered into, Louisiana had been purchased, a commercial embargo used, and the powers of the executive had in fact greatly increased. The Jeffersonians who, out of office, had

The New
National
Spirit

cried out against the liberal powers of the Federal government, when in office had found them convenient; the violations of governmental theory so obnoxious to the minority seemed less important when that minority became a majority with the problem of running the nation on its hands, so that the doctrines of strict construction became a legacy of the disgruntled New England Federalists. In 1810, Marshall delivered the opinion in the case of Fletcher v. Peck (see note to that case, infra, Vol. I., p. 228). That controversy was in its nature political, and Marshall's decision, as a practical matter, did not settle it at all; the Supreme Court announced its law and Georgia disregarded the announcement. In 1812, Marshall delivered the opinion in New Jersey v. Wilson (infra, Vol. I., p. 255), another case limiting the right of a state to impair its contracts, but the case seems to have attracted little notice, and been little understood. No other important constitutional case was decided by the Court until the close of the War of 1812.

When the war ended in 1816, it was evident that the theories of the country as to constitutional government had been radically changed since the first administration of Jefferson. As Mr. Henry Adams tersely said:

"Between 1801 and 1815 great changes in the American people struck the most superficial observer. The rights of men occupied public thoughts less, and the price of cotton more,-"1 History of the United States, vol. ix., p. 104.

In the last year of the war, the national government was practically bankrupt and New England talked of separation, commerce and manufacture were paralyzed, and there was no currency. The question of what was constitutional gave way to the question of what was possible. "In politics as in theology, the practical system which resulted from sixteen years of experience seemed to rest on the agreement not to press principles to a conclusion." 1 It was obviously necessary to return to Washington's theories of "a strong government" which Hamilton had toasted. In the years immediately following the war then there appeared a new national spirit. 2 This spirit, which the nation's lesson in the facts of government had taught it since 1800, was immediately manifested in the legislation of 1816 in the increasing of the activity of

1 History of the United States, vol. ix., p. 191.

These tendencies are elaborately and significantly treated in The Middle Period by Professor John W. Burgess (Scribners', 1900). See also an essay by Nicholas Murray Butler published in 1887 in John Hopkins University Studies, Fifth Series VII. The growth of the national spirit is curiously shown in a letter of Gallatin (Adams' Writings of Gallatin (Putnams'), vol. ii., p. 300) written May 7, 1816, where he says:

"The war has been productive of evil and good, but I think the good predominates. Independent of the loss of lives and of the losses in property by individuals, the war has laid the foundation of permanent taxes and military establishments which the Republicans had deemed unfavorable to the happiness and free institutions of the country. But under our former system we were becoming too selfish, too much attached exclusively to the acquisition of wealth, above all, too much confined in our political feelings to local and State objects. The war has renewed and reinstated the national feelings which the Revolution has given and which were daily lessened. The people have now more general objects of attachment with which their pride and political feelings are connected. They are more Americans; they feel and act more as a nation, and I hope the permanency of the Union is thereby better secured."

Madison's first message

the Federal government. Madison's first after the war recommended reorganization of the army and navy, the creation of a national currency, national improvements of highways, and a national university. In 1816, Congress passed a bill creating a new national bank, and only one member of either House questioned the constitutionality of the bill which five years before and for twenty years after was bitterly denounced as a usurpation of the rights of the states. In 1816, too, Congress passed the first Tariff Act, perhaps hardly to be regarded as a protective measure for American manufactures; but so championed even then by Calhoun, and surely the beginning of the protective tariff. The same Congress provided a thorough reorganization of the army on a permanent peace footing, and the retirement of over eighteen hundred superannuated officers. Additions were made to the navy and a bill was passed to provide a permanent fund for national improvements. 1

1

Too often this aspect of the constitutional development of the country is passed over in any study of Marshall. The doctrines of McCulloch v. Maryland in 1819, three years after, that the federal government must have all powers convenient and suitable to carry on the nation, were the very doctrines under which the government had been operated in the years following the war. Too much emphasis can hardly be put upon the conclusion that in 1816 the nation was starting afresh in the governmental experiment

'This bill was, however, vetoed by Madison on the ground that it was unconstitutional as not pertaining to national objects.

on the very basis from which it had departed in the last decade of the eighteenth century, and that Marshall's theories were the justification of the actual practice of the American government at that time.

It was not until after the war and after the new national spirit that Marshall began his great series of McCulloch opinions construing the national powers and v. Maryland the limitations on the states, and the doctrines of the Supreme Court began to be felt as a cogent governmental power. First in importance, though not in time, was the great case of McCulloch v. Maryland in 1819. (See note to that case, infra, Vol. I., p. 302). The Bank of the United States, established immediately after the war, was, it seems, not operated on sound or conservative lines. By 1818, the depression of commerce and manufacture caused, probably, by the embargo and the war combined, with imprudent banking and insufficient currency, had brought the country to "hard times," particularly in the west. From 1814 on there had been numbers of banks chartered by the states which issued worthless and irredeemable paper.1 Every evil of wild-cat banking and fraudulent over-issue was present. In Pennsylvania and the western states there came a condition akin to universal bankruptcy, and popular indignation made the Bank of the United States the scapegoat for conditions really brought about mainly by popular folly. The course of the Bank in forcing

'The banking conditions are fully set out in McMaster's History of the United States, vol. iv., ch. xxxvi. and in W. G. Sumner's Life of Jackson, American Statesmen Series (Houghton & Mifflin, 1888).