tion; but it could be wished that he had seen fit to demonstrate its wisdom in a more com prehensive manner. The motive or misconception which led Marshall to overstep the bounds of formal judicial procedure in Marbury 7'. Madison again appeared in 1807 when, at the trial of Aaron Burr, he issued a subpoena duccs tccum to President Jefferson. See also Livingston v. Jefferson, Fed. Cas., No. 8411. Many years later, in Worcester v. State of Georgia, 6 Peters 515, he again found himself in con flict with the executive department of the government, and powerless to enforce his de cree. Marshall's reasoning in Marbury v. Madi son was mainly that of Alexander Hamilton in the Federalist. In his great opinion in McCulloch v. Maryland, 4 Wheaton 316, prob ably, all things considered, the finest speci men of his powers, he drew largely from the same source. The doctrine of implied pow ers had been formulated and expounded by Hamilton in his opinion on the constitution ality of his proposed national bank in a man ner which, as the chief justice acknowledged during the argument of McCulloch v. Mary land, left nothing to be added. In the constructive work of vitalizing a written instrument of government and plac ing the Federal authority upon broad and se cure foundations, it was perhaps inevitable that Marshall should occasionally err in the direction of magnifying the scope and reach of Federal powers, ami should tend to inter pret too narrowly the restraints upon the states. Some of his applications of the con tract clause of the Constitution, notably Fletcher v. Peck, 6 Cranch 87, Dartmouth College v. Woodward, 4 Wheaton 518, and State of New Jersey v. Wilson, 7 Cranch i, have since been severely criticised; and their effect has been largely overcome by the inter vention of the police power. His conclusion in Craig v. State of Missouri, 4 Peters 410, was afterwards overruled; and neither Mar
shall's efforts nor those of the succeeding generations of judges have succeeded in sat isfactorily coordinating the functions of the Federal and State governments in the regu lation of interstate commerce.1 Fifteen associate justices served for va rious periods during Marshall's time. Of the five associate justices at the time of his ap pointment — Gushing, Paterson, Chase, Washington and Moore—Washington alone survived after 1811. Meanwhile, Wm. John son, Livingston and Todd had succeeded to vacancies, and all served long terms. Story and Duvall, who were appointed in 1811, served throughout the remainder of this pe riod. In the next decade came Trimble, Thompson and McLean. Baldwin was ap1 The following selections from Marshall's work suffice to illustrate the foregoing characterization :— Talbot t'. Seaman, I Cranch (first opinion); Wilson v. Mason, I it. 45; Marbury v. Madison, I it. 137; U. S. - Fisher, 2 it, 358; Church v. Hubbart, 2 it. 187; Hep burn -'. Ellyey, 2 ib. 445; Ex parte Bollman, 4 ib. 75; Alexander?•. Baltimore Ins. Co., 4 ib. 370; Fitzsimmons r. Newport Ins. Co., 4 ib. 185; Rose v. Himley, 4 id. 241; U. S. v. Burr, 4 ib. Appendix; Bank of U. S v. Deveaux, 5 ib. 61; U. S. v. Peters, 5 ib. 115; Fletcher v. Peck, 6 ib. 87; Durousseau v. U. S., 6 ib. 307; Rus sell;.•. Clark, 7 ib. 116; New Jersey v. Wilson, 7 ib. 164; The Venus, 8 ib. 253; Clark's Exrs. v. Van Riemsdyk, 9 ib. 153; The Commercen, Wheaton 382; Coolidge 11. Payson, 2 Wheaton 66; Olivera v. Union Ins. Co., 3 it. 185; U. S. r. Bevans, 3 ib. 336; U. S. v. Palmer, 3 it. 610; Phil. Baptist Asso.?'. Hart, 4 ib. I; Sturges v. Crowinshield, 4 ib. 122; Bank of Columbia j1. Oakley, 4 it. 235; McCulloch v. Maryland, 4 it. 316; Dartmouth College v. Woodward, 4 it. 518; Houston r. Moore, 5 it. i; Loughborough z1. Blake, 5 it. 317; U.S. v. Wilierbridge, 5 it. 76; Owings - Speed, 5 it. 420; Farmers and Mechanics Bk. v. Smith, 6 it. 131; Anderson ». Dunn, 6 it. 204; Cohens v. Virginia, 6 id. 264; Hunt v. Ronsmanier, 8 ib. 174; Gibbons T. Ogden, 9 it. l; Johnson -•. Mclntosh, 8 it. 543; Osborn v. Bank of U. S., 9 ib. 738; U. S. Planters Bk. of Georgia, 9 ib. 904; Way man i: Southard, 10 it. i; The Antelope, 10 it. 66; Ogden v. Saunders (diss.) 12 ib. 332; Maison r. Haile, 12 it. 370; Martin v. Mott, 12 it. 19; Postmaster Gener al v. Early, 12 it. 136; Brown v. Maryland, 12 it. 419; Governor of Georgia?-. Madrozo, I Peters no; Ameri can Ins. Co. v. Canter, I it. 511; Wilson v. Blackbird Creek Co., 2 it. 245; Columbian Ins. Co. -'. Lawrence, 2 it. 25; Foster v. Neilson, 2 it. 253; Satterlee r Mathewson, 2 id. 380; Western v. Charleston, 2 it. 449; Craig v. Missouri, 4 it, 410; Providence Bank r. Bill ings, 4 ib, 514; Cherokee Nation v. Georgia, 5 it, I; Worcester v. Georgia, 6 it, 515; Barron v. Baltimore, 7 ib, 243; Byrne v. Missouri, 8 it, 40; U. S. r. Clarke, 8 it, 436; Scott v. Loyd, 9 it, 418; Wormley v. Wormley, i Marshall 330; Hopkirk v. Page, 2 id, 20; Brig Wil son v. U. S. ib, 423; U. S. v. Maurice, 2 ib, 96.
