Marshall created the American system of constitutional government. The Power of the Federal Courts It is necessary to review several other lines of cases to show more thoroughly how far-reaching his achievement had been, and how great a range his. cases had covered. First, as to the power of the Federal courts. The original Judiciary Act of 1789 was drawn soon after the adoption of the constitution with a view of giving to the Federal courts the fullest jurisdiction granted them under the constitution. That great national act, and the clauses in the constitution on which it rested, were substantially first construed by Marshall and his Court,—and surely he construed them in a large way for the purpose of establishing a court of ample jurisdiction and complete power-such a court as the world had never seen. By Marbury v. Madison (infra, Vol. I., p. 1) he had declared the power of the Court to check violations of the constitution by the co-ordinate branches of the Federal government and by 1830, the exercise of that power was generally, though not completely, acquiesced in. In the long line of cases beginning with Fletcher v. Peck, the Dartmouth College case and the Kentucky and Tennessee cases he had established the Court as the guardian of constitutional guaranties of vested rights of individuals against the encroachments of the states. And more, a practical step of hardly less significance, he had established the Supreme Court as the final judge of constitutional questions over all the state courts. The constitution in terms gave the Supreme Court no jurisdiction or power of review over the decisions of the state courts on subjects of which the Federal courts had jurisdiction, yet it was vital to the supremacy of Marshall's doctrines. The chain of reasoning by which he found such a power implied in the constitution was announced by Judge Story in Martın v. Hunter's Lessee, 1 Wheaton, 304, and by Marshall in the noble opinion in Cohens v. Virginia (infra, Vol. I., p. 400) the most satisfying perhaps of all his decisions.1 The ground of that appellate jurisdiction Marshall found in the declaration that the constitution and the laws of the United States were to be the supreme law, in the clauses of the constitution defining the appellate jurisdiction of the Supreme Court in "all other cases," and in the general purpose of the constitution to establish a harmonious and complete judicial system. The astounding quality of that reasoning, convincing as it is, lies in the fact that the Eleventh Amendment forbade any citizen of one state commencing any suit against another state. Yet Cohens v. Virginia declared the right of a citizen to appeal from a state court to the Supreme Court on a federal question, though that had the indirect result of summoning a state before the bar of the Supreme Court. No one of Marshall's cases save Marbury v. Madison, and McCulloch v. Maryland excited more violent and bitter opposition than this. 1 The jurisdiction asserted in these two cases had been previously exercised unchallenged in other cases. Marshall's It is not surprising that, in constructing his scheme of constitutional law, in which the most important part was the strengthening of the powers Limitations of the national government, Marshall construed, perhaps too literally and harshly, the limitations in the powers of the states. It is in that branch of the law only that Marshall's decisions have been departed from.1 on State Powers In New Jersey v. Wilson (see note to that case, infra, Vol. I., p. 255), Marshall had decided that a state contract for tax exemption was inviolate. That doctrine, thus barely stated, is still law, but, as a matter of experience, to guard against improvident grants of exemptions in the early stages of the country's development, the Supreme Court has of necessity established the strictest rules for construing tax exemptions. The conditions which Marshall there construed as a contract of exemption would now be construed as no contract at all. The courts have become astute to escape the doctrine-of questionable soundness in the beginning-because it came to work a substantial inequality. Sturges v. Crowninshield (see note, infra, Vol. I., p. 281) was expressly overruled in Marshall's time, and though the scheme of government propounded by it may be the wiser one, Marshall's opinion seems clearly wrong. The Dartmouth College case (see note, infra, Vol. I., p. 346), like New Jersey v. Wilson, established the inviolability 2 I This is noted by Professor Thayer almost alone of Marshall's commentators. ? A mass of expert opinion to the contrary notwithstanding. ! of corporate charters as contracts; the value of that principle as giving stability to corporate enterprise in the beginning of the nation can hardly be over-emphasized; it is the main element of strength in the American corporate system, but almost immediately improvident legislation made it the instrument of oppression by rapacious corporations. Still it sets the point of view of the courts in dealing with these questions; it is no longer the rule of conduct and the exceptions have half eaten away the rule, but the rule established fair treatment of the corporate charters as a judicial principle,' the exceptions were such as became necessary to make possible fair treatment to the public and to protect them from their legislatures. So also the doctrine of Craig v. Missouri (see note to that case) proved in practice an unnecessarily stringent restriction on the state power to relieve local currency troubles, and the sweeping statements of McCulloch v. Maryland (see note to that case, infra, Vol. I., p. 302) as to the powers of the states to tax the instruments of the national government have been substantially departed from in later Yet it will not do to note those reversals as errors. By and large, the country has taken kindly to the exercise of the constitutional power of review cases. 1 As Professor S. E. Baldwin significantly remarked: "So did the little phrase 'impair the obligation of contracts'-like the genius of some Arabian tale—at the touch of the magic wand of Chief Justice Marshall, rise and spread into the form of that invincible champion of chartered franchises, by which the whole theory of American corporations was to be revolutionized once and again." (P. 12, Modern Political Institutions, Little, Brown & Co., Boston, 1898.) by the courts, and each succeeding state constitution partakes more largely of the nature of a code of fundamental law and less of the nature of a scheme of government, and each tends to place stricter limits on the improvidence and the unfairness of the legislative branches and greater power of oversight in the courts. To that result, which many of the wisest deem unfortunate, Marshall's method of interpreting the limitations on state powers has led the way. Wise or unwise, it has become a habit of government, a new function of the courts, a practical growth of their powers to an accomplished revolution, natural enough, though in no wise consciously planned by Marshall and his court. merce Clause One other great line of cases remains to be dealt with, those construing that clause of the constitution The Com- reading, "Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes," which has produced more difficulties of interpretation than any other clause in that instrument, and is still a source of perplexity to the Supreme Court. Marshall's first opinion construing that clause, five years after the War of 1812 and ten after the Embargo, was The Brig Wilson (Ivory Huntress, claimant,) v. The United States, a decision delivered in the Circuit Court, in 1820, reported in 1 Brockenbrough, 234 (infra, Vol. II., p. 401). It is a cases eldom cited, but of real importance. The constitution left entirely to the states the question of the importation of negroes before 1808, but, in 1803, |