desire to foster domestic commerce by building passable highways through the country. Thus while arguing beside the point with the people he conveyed to his followers the real purpose of these things— namely, the march of the constitution toward an aristocracy.

It is impossible within any reasonable space to picture the sufferings of men through the long ages at the hands of tyrants or to show that beyond the boundaries of a republic lies the domain of monarchy where the sun of truth does not shine, because monarchy will not suffer itself to be explored, knowing that it is defended by the monsters of force and fraud. Language, therefore, is weak when an attempt is made to characterize the Hamiltonian plot against the great republic which came into being after centuries of struggle, endowed with the pacific wisdom of the greatest men of Greece and Rome and England. Who can sufficiently condemn any plot designed to turn the republic back into the hateful paths of despotism? Centuries hence, when perhaps the democratic principles shall have been put beyond assault by bloody revolutions and this undergrowth of dialectics concerning implied powers shall have been burned up in the fierce heat of outraged humanity, men will wonder at the darkness with which the evil genius of Hamilton and Marshall obscured the light of heaven.

It is conceded by Marshall's warmest admirers that his reasoning in McCulloch vs. Maryland was adopted from Hamilton's report on a national bank. The latter is at once the most patent as well as the most artful

piece of unreason in the language. Most patent because no man of candid sense can fail to perceive its fallacies. It is most artful because almost impossible of disproof to any man whose intuitive sense of logic does not grasp its refutation in its own terms. It is comparable to nothing in any language more than to the puerile sophistry of Plato. Yet history has been fabricated and criticisms written to exalt this sinister document. It is supposed to add to the celebrity of Marshall that he followed its irrational windings in adjudging the charter of the United States bank to be constitutional.

As the charter violated the laws of mortmain and alienage, of descent and distribution, there was in these things sufficient reason for invalidating it. As it created a monopoly and therefore invaded the principles of liberty, the bank had no place in the republic. As it was invested with powers paramount to the states, it trespassed upon that sovereignty of the states which is limited only by the sovereignty of the general government. As the bank was an economic heresy, it was not a proper means of carrying into effect any enumerated power of congress. As the constitutional convention had voted down a proposition to authorize congress to open canals and to incorporate companies, because congress would then be empowered to incorporate a bank, Hamilton's report asserted an implied power in congress to do that which the convention had expressly refused to confer upon congress.

Therefore, as the constitutional debates might be ignored upon the principle that all intents became merged in the constitution, although Marshall himself

frequently quoted the Federalist in deciding questions, still, as the constitution was silent on the power to incorporate a bank, a trading company or any other corporation, it became incumbent upon Hamilton to establish a relation between a bank and one of the enumerated powers as being "necessary and proper" to effectuate it. Here refinement reached the level of medieval metaphysics. Hamilton asserted that "necessary" meant needful, requisite, incidental, useful or conducive to. On the other hand, Jefferson contended that necessary means constituted those "without which the grant of power would be nugatory."

It is apparent that many things might be useful to the execution of some enumerated power or in some manner incidental to its execution without bearing that legitimate relation to it which in its absence would render the enumerated power incapable of execution. Then Hamilton sought to bring the creation of the bank within the implied powers of congress. He argued that it related to the collection of taxes, because it increased the circulating medium, and, therefore, facilitated the payment of taxes. But as congress is only empowered to lay taxes and pay debts, the bill to create the bank laid no tax and paid no debt. He argued that it related to the power of borrowing money. But the bill neither borrowed money nor provided for borrowing money. He argued that it related to the regulation of commerce between the several states. But the bill did not regulate commerce, but only created a subject of commerce in its paper money, just as any producer of wealth creates subjects of commerce, but does not regulate them by

such production. Instances of the argument need not further be multiplied to demonstrate the fallacy of Hamilton's report.

Hamilton then entertained the avowed project of monarchizing the republic and warded off attacks upon him by the demagogic plea that the sovereignty of the nation must not be crippled. No one ever entertained that purpose. But the constitution was adopted by the fathers and defended by Jefferson for the purpose of crippling the imperialistic attempts of that body of thinkers who believed in monarchial govern

ment.

Among candid men it can never be debatable that in this government, conceived in liberty and dedicated to the proposition that all men are created equal, its constitution impliedly warrants the erection of a monopoly. Nor can it be debatable that a government so founded by force of its constitution permits any legislation as necessary to carry into effect some express power which in its intent and practice constitutes pure aggression. It was never intended that implied powers should be written into the constitution in favor of the monarchial principle of special privilege and that it should be strictly construed against the republican principle of liberty.

Marshall well knew that the United States bank, by virtue of the special privileges granted it, absolutely dominated the financial system of the land, and that it had the power to destroy every moneyed institution in the country and to reduce to beggary almost countless thousands of people. How could legislation creating such an institution be held as constitutional

when not expressly provided for in the constitution and asserted to be impliedly provided for in a piece of far-fetched and fantastic unreason? In the absence of Marshall's positive declarations, his bank decision is sufficient to stamp him as an enemy of republican principles.

Upon this foundation the fame of Marshall rests. He was not a friend to the constitution or to republican institutions. And as showing that his decision in the bank case was the result of a temperamental leaning in favor of a monarchial system and that it did not result from the logic of discussion the opinion of Allan B. Magruder, Marshall's panegyrist, is in point. "He," wrote Magruder, "made federalist law in nine cases out of ten and made it in strong, shapely fashion. A republican judge, however, would have brought about a very different result, which as we believe would have been vastly less serviceable to the people, but of which the workmanship in a strictly professional and technical view might have been equally correct."

A vulgar view of the matter created by federalistic sophistry is that Marshall's decisions somehow armed the northern arms to deal the death blow to anarchy, Calhounism and strict constructionism, supposed to have been championed by Jefferson. Herein these irreconcilable things have been falsely confused. The civil war decided nothing new whatever. It merely destroyed by force the doctrines of Calhoun that the constitution itself provides by implication for the peaceable dissolution of the union. But it did not decide that the constitution by virtue of its implied