future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And, as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislatures are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations may, at any time, be passed by those intended to be restrained?"

In the next year, 1804, the Supreme Court, in the case of The United States v. Fisher (2 Cr., 358), laid down in the clearest manner possible the doctrine that the Federal Government, in the exercise of the powers specifically granted to it, is not restricted to the employment of simply those means that are indispensably necessary, but may make use of any means that are calculated to assist in attaining an end specifically authorized by the Constitution. "It would be incorrect and would produce endless difficulties," says the Court, "if the opinion should be maintained that

no law was authorized which was not indispensably necessary to give effect to a specified power.

various systems might be adopted for that purpose, it might be said, with respect to each, that it was not necessary because the end might be reached by other means. Congress must possess the choice of means, and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution."

Five years later, in 1809, was decided the case, of The United States v. Peters (5 Cr., 115),—a case which involved a direct contest of power and authority between the Federal Government and the State of Pennsylvania. A vessel, the sloop Active, had been condemned and sold in 1777 as a prize by the admiralty court of Pennsylvania. Upon appeal to the Committee of Appeals of the Continental Congress this decision had been overruled and the state marshal forbidden to pay over the proceeds to the state court. Notwithstanding this order, however, the money was paid over, and ultimately found its way into the state treasury. In 1803 suit was brought in a federal District Court to recover this money from the estate of the state treasurer, Rittenhouse, then deceased, and judgment was obtained. Thereupon the legislature of Pennsylvania passed an act denying the authority of the federal court in the premises, and directing the state executive to prevent, by force, if necessary, the execution of the federal decree. Repeated efforts to obtain a peaceful settlement having failed, a writ of mandamus was asked for from the Supreme Court of the United States to compel the

district judge to enforce his judgment. In passing upon the request thus raised, Chief Justice Marshall clearly recognized that the very existence of the National Government as a competent central authority was involved. "If," he said, "the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under these judgments, the Constitution itself becomes a solemn mockery; and the Nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all, and the people of Pennsylvania, not less than the citizens of every other State, must feel a deep interest in resisting principles so destructive of the Union and in asserting consequences so fatal to themselves." "The act in question," continued the Chief Justice," does not, in terms, assert the universal right of the State to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence, the execution of which it prohibits, was rendered in a cause over which the federal courts have no jurisdiction. If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the Constitution in the several state legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of the nation . . . the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question." After examining and refuting the claim that the federal district court did not have jurisdiction, the Chief Justice declared that

...

"consequently the State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause." "It will be readily conceived," he concluded, "that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded."

The preeminent importance of this decision of a case growing out of the first open resistance of a State to federal authority has justified the foregoing extensive quotation from it. In obedience to this order, the district judge issued his writ of attachment. When, however, it was attempted to be served, the marshal found the Rittenhouse residence surrounded by state militia which had been called out by the Governor in obedience to the act of the legislature. The marshal therefore withdrew and summoned a posse comitatus of two thousand men. Appeal was then made by the Governor of Pennsylvania to the President of the United States to prevent the execution of a judgment founded, it was declared, upon a usurpation of power. Madison, however, declined to interfere, and the Pennsylvania legislature thereupon gave way and the money was paid over. Later the Federal Government still further vindicated its authority by indicting, and securing the conviction of, the general of the Pennsylvania militia and his men who had resisted the service of the federal writ.

The State of Pennsylvania, thus defeated, suggested

that the federal Constitution be so amended as to provide that an impartial tribunal be established for the trial of disputes between individual States and the United States. Upon this proposal being sent to Virginia, both houses of the legislature of that State unanimously condemned it and declared that "a tribunal is already provided by the Constitution of the United States, to wit, the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from their tenure of office, to decide the disputes aforesaid, in an enlightened and impartial manner, than any other tribunal that could be created."

The facts of this famous case, together with the explicit utterances of the Supreme Court, certainly went very far toward demonstrating that already sovereignty lay in the United States.

In 1810 a state law was again declared unconstitutional and therefore void,1 this time upon the ground that it impaired the obligation of contracts, a characteristic that has since operated to invalidate well on to a hundred state acts.

In 1819 was decided the case of McCulloch u. Maryland (4 Wh., 316), which, though it can scarcely be said to have involved the enunciation of any absolutely new constitutional principles is yet important; first, because of the liberality with which it was declared that the implied powers of the Federal Government should be construed; second, because of the explicitness with which it was asserted that a State may not interfere in any way, by taxation or other1 Fletcher v. Peck, 6 Cr., 87.