and settled by the Supreme Court, which has always spoken for the nationality of the United States. A brief reference to some of the leading cases may indicate its action, and the effect thereof on our history. In Chisholm, executor, v. Georgia, 2 Dall. 419, decided February 18, 1793, the court (considering those provisions of the Constitution which extend the judicial power of the United States to controversies “between a State and citizens of another State,” and give to the Supreme Court original jurisdiction of controversies to which a State is a party) held that an action might be maintained against a State by a citizen of another State. The national idea was not yet strong, and the proposition that a sovereign State could at the instance of an individual and without its consent be brought to the bar of a court and compelled to defend an action against it startled many. As a consequence the Eleventh Amendment was adopted, which in effect forbids an action in the Federal courts against a State by an individual.
John Marshall became Chief Justice in January, 1801, and remained in office for thirty-four years. He is often aptly called ‘the great Chief Justice.’ During his long term many questions of vital interest were considered and determined by the court. It was a great constructive period, and by those decisions which declared the relative powers of the nation and the State was disclosed the full significance of the Constitution as an instrument expressing the creating of a new nation and not a mere article of confederation between separate States. Not merely were these relative powers declared, but the peculiar work and value of the Supreme Court as the tribunal to determine the extent of such relative powers and to pass in judgment upon acts of State and nation were also made apparent. In Marbury v. Madison, 1 Cranch. 137, decided February 24, 1803, it was held that an act of Congress repugnant to the Constitution was void. True, this was not the first case in which such a judicial opinion had been announced, but Chief Justice Marshall presented the argument so fully and forcibly that since then the question has been at rest, and it is now undoubted that a legislative act repugnant to the Constitution is a nullity. Again, in M’Culloch v. Maryland, 4 Wheat. 316, the question was presented of the power of Congress to charter a national bank. The Constitution gives in terms no such power, or indeed any power to create corporations, and the advocates of a strict construction contended that in the absence of an express grant of such power Congress could not create a corporation for any purpose. The court, upon the authority of that clause which, following the clauses making express grants to Congress, empowers that body to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” held that, as a bank was a proper and convenient agency for carrying on the fiscal affairs of a government, there was power in Congress to create a banking corporation; that the word ‘necessary’ was not to be construed in a strict and narrow sense, but—viewing the Constitution as an organic instrument by which a government was established and which from the very necessities of the case used general terms in giving to that government the power essential for its being—to be taken broadly and liberally, and said in a phrase which has become axiomatic in constitutional law: “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 consistent with the letter and spirit of the Constitution, are constitutional.”
This decision laid the foundation of what is known as the doctrine of implied powers, the significance of which may be better appreciated when we recall the fact that under a grant of power stated in these few words “to establish post-offices and post roads” the great postal system of the United States has been built up. At the same term was decided the case of the Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, in which it was held that the charter of a private corporation granted by a State created a contract whose obligations the State could not impair, because of that provision of the Federal Constitution which forbids a State to pass any law “impairing the obligation of contracts.” (See Dartmouth College Case.) It is true the full effect of that decision has been avoided by constitutional enactments in the several States, reserving the power of repeal, alteration, and amendment of all corporate grants. Yet, notwithstanding these limitations, that decision stands as the great bulwark of the sanctity of contract rights created by the States.
Martin v. Hunter, 1 Wheat. 304, and Cohens v. Virginia, 6 Wheat. 264, the latter decided at the February term, 1821, settled the power of the Supreme Court to review, and if necessary set aside, the proceedings of a State court in a case in which a Federal right was asserted by the defeated party. Thus it is that all rights which are claimed under the Constitution of the United States may finally be adjudicated by the Supreme Court of the United States, and a unity is thereby established which pervades the nation in respect to such rights. Again, in Gibbons v. Ogden, 9 Wheat. 1, decided in 1824, the supreme power of the Federal Government over the navigable waters of the United States was affirmed. In that case Robert Fulton, the inventor of the steamboat, and his associate, Robert R. Livingston, obtained from the State of New York the grant of an exclusive right to navigate with steamboats the waters within the jurisdiction of that State. Gibbons claimed a right under national authority to navigate with his steamboats the same waters, and hence the litigation. The Constitution having granted to Congress the power to “regulate commerce with foreign nations and among the several States,” it was held that that power could not be infringed upon by any action of a State and that a State could not interfere with such commerce even when carried upon waters wholly within its own territory. Upon that decision rests that freedom of commerce between the States which, perhaps more than any other thing, has wrought into the minds of the people the great thought of a single controlling nationality. In this connection the case of ‘The Genesee Chief,’ 12 How. 443, decided in 1851, may be noticed. In that case it was held that the English rule that the jurisdiction of admiralty ended with tide waters was inapplicable, and that in this country such jurisdiction, which by the Constitution is vested in the United States courts, extends to all the navigable waters of the Republic. Thus
