the state banks to early resumption of specie payment undoubtedly had the result of withdrawing currency from circulation in the debtor communities of the west and did force a general liquidation in those communities. In the general bankruptcy that followed a strong effort was made to repeal its charter. Failing that, the states commenced a systematic campaign to tax out of existence this Bank which seemed the immediate source of all trouble, and which was now freely denounced as unconstitutional. The resistance to the Maryland tax came before the Supreme Court in McCulloch v. Maryland and Marshall there laid down, in the broadest terms the extent of the national power to do all things necessary and convenient for the ends of government and the doctrine that their exercise under the constitution was paramount and free from all restraint by the states. The conflict that followed that decision and the persistent disregard for the authority of the Supreme Court are the subject of the notes to that case (infra, Vol. I., p. 302) and to Osborn v. Bank (infra, Vol. II., p. 84) and Weston v. Charleston (infra, Vol. II., p. 261). The Supreme Court's decision did not settle that controversy, and it was not until 1826 that normal conditions of banking were restored. Shortly after that Jackson saw fit to begin his operations against the Bank, again declaring that it was unconstitutional. Yet in nearly every discussion of McCulloch v. Maryland that historical setting is lost sight of. Marshall's doctrine of implied powers was the exposition of the national powers which, immediately after the war, had been vital to

the existence of the government; he was upholding the Bank which was created by a Congress in which only one man questioned its constitutionality, and which the majority of the solvent communities of the country still believed in and supported.

of State Honesty

1

In the "hard times" of 1818 it was but natural that the constitutional restrictions on the state The Lesson powers bore harshly on the debtor states, and that they were constantly violated, secretly and openly. Kentucky, as Professor W. G. Sumner says, "was the scene of the strongest and longest conflict between the constitutional guaranties of vested rights and the legislative measures for relieving persons from contract obligations." In this " In this "application of political forces to the relations of debtor and creditor" Marshall and the Supreme Court, by precept and by example, played a most important part. By 1819, all the banks of Kentucky and Ohio had suspended specie payments, the population of both states was falling off, and the majority of the people who remained were actually bankrupt. Illinois and Tennessee were in, or soon came to, a like condition. Tennessee passed a relief law making property sold under execution redeemable within two years. The Supreme Court of Tennessee declared the law unconstitutional. Kentucky laid a tax of $60,000 on each branch bank of the United States (this was entirely similar to the Ohio law declared unconstitutional in Osborn v. Bank

Life of Jackson, p. 118, American Statesmen Series, (Houghton & Mifflin, 1888.)

(infra, Vol. II., p. 84). In 1819, Kentucky passed a law suspending sales on execution under legal process for sixty days. A law similar to the Tennessee relief law was passed in 1820.1 The State Bank of Kentucky had reached substantially the position of issuing unlimited unredeemable paper. In 1822, an attempt was made to remove Judge Clark, of the Kentucky Supreme Court, who declared a replevin act of Kentucky unconstitutional, and that attempt barely failed. In 1823, the Governor denounced the action of the courts. In 1823, the Court again declared the relief system unconstitutional; in 1824, the legislature affirmed it, and the issue in the next campaign was to remove the judges. Again the attempt narrowly failed, but the legislature created a new Court of Appeals-that, too, was declared unconstitutional, and Kentucky had two rival court systems. It was not until 1827 that a compromise was effected and the old courts restored. Affairs were only a little better in Ohio and Missouri, though the eastern states, save Pennsylvania, where business and banking had been on a fairly stable basis, had no such conditions to contend with.

In that stormy period the Supreme Court stood firmly by the constitutional guaranties of vested rights, and denounced and defeated the dishonest policy of the debtor states, without a moment's weakening or hesitation. The value of that service can hardly be overestimated. In 1819, in Sturges v. Crowninshield (infra, Vol. I., p. 281), Marshall had

123 Niles Register, 153.

denied the right of the states to pass bankrupt laws, a harsh doctrine that the Supreme Court later refused to follow, and in the same year he decided that the Bank, which the west believed the root of all evil, was constitutional. In Osborn v. Bank, in 1824, not only were the attempts to strangle the branch banks of the United States overthrown, but the Supreme Court declared in substance, that it had final jurisdiction of every suit of every kind to which the Bank was a party. In Bank of the United States v. Halstead, 1825, 10 Wheaton, 51, the Supreme Court decided that it had jurisdiction of all suits to which the Bank was a party, and that a Kentucky relief law which forbade sales of lands on execution for less than three fourths of the appraised value was to be construed as not applying to executions out of Federal courts. In Wayman v. Southard, 10 Wheaton, 1, decided in the same year, the Supreme Court held that the replevin law of Kentucky giving a period of redemption on executions did not apply to executions out of the Federal courts. Both cases were in substance declarations of unconstitutionality of the relief laws. In Bank of the United States v. Planters Bank (see note to that case, infra, Vol. II., p. 143) it was decided substantially that a state was suable and in so far lost the attributes of sovereignty if it became a party to a banking enterprise,-certainly the safeguard of the Eleventh Amendment did not stand in Marshall's way. In Green v. Biddle, 1823, 8 Wheaton, 1, the Supreme Court decided that the Kentucky laws of 1812, which reduced the amounts recoverable

in land controversies were void as in violation of the contract of separation of Virginia and Kentucky. In 1816 had come Martin v. Hunter's Lessee, 1 Wheaton, 304, and in 1821 Cohens v. Virginia (infra, Vol. I., p. 400), declaring the final power of the Supreme Court to review the decisions of the state courts on federal questions.

In 1830, in Craig v. Missouri (infra, Vol. II., p. 275), the Supreme Court gave Missouri the touch of the whip, declaring its relief law providing a state currency unconstitutional. Later decisions of the Supreme Court - perhaps unwisely-have construed away some of the harshness which Marshall's view of the constitution laid upon the powers of the states, but the part that the Supreme Court, and the courts of Kentucky and Tennessee, then played in teaching the lesson of state honesty, is too little understood.

The period from the close of the war to the first administration of Jackson,-important as were the economic changes in the nation, and deplorable as was the financial situation in the west,—was a slack time in politics and political theories. After the Missouri Compromise, slavery was not a direct issue, prosperity was slowly returning to the country, and the tariff was benefiting the seaboard and manufacturing communities of the north. Except for the southern agitation on the tariff in the latter part of that time and the beginning of slavery troubles, the country was disturbed by no great political issue, and the powers of the national government were oppressive to no great part of the people. In that period,