THE CONSTITUTION SUPREME.

487

tial to the beneficial exercise of those powers. "Should Congress," said he, "in the execution of its powers adopt measures which are prohibited by the Constitution, or under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government," it would become the duty of the Supreme Court "to say that such an act was not the law of the land. But where the law is not prohibited and is really calculated to affect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground." The Court disclaimed pretention to such a power.

"We admit," said he, "as all must admit, that the powers of the government are limited and that its limits are not to be transcendent. But we think the silent construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it avers are to be carried into execution. which will enable that body to perform the high duties assigned to it, in a manner most beneficial to the people. 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." 1 We but follow an opinion of Chancellor Kent, when we say that no other decision by the Supreme Court gives so clear and satisfactory a statement of the supreme character of national laws.2

A great protest to this decision immediately arose from the powerful political party, which from its inception,

14 Wheaton, 421.

'Kent's Commentaries, twelfth edition, Vol. I, 428.

488

NATURE OF THE UNION.

had opposed the principles of interpretation that Marshall followed in all his decisions. This protest found its highest official utterance in the message of President Jackson, already referred to, vetoing the bill for re-chartering the bank. It is safe to say that many thoughtful Americans, at the time the veto message was sent to the Senate, approved both the message and Marshall's decision. The bank was viewed by the masses as a dangerous corporation, and the public approved the President's veto. But Marshall's decision settled far more than the right of Congress to incorporate a bank. At a critical time in the history of the nation, he had boldly outlined the true character of the government which the people had ordained and established. He gave an authoritative definition of the nature of the jurisdiction of that government, and the jurisdiction thus outlined has never decreased. He recognized the discretionary rights of Congress. Two years later in an equally important decision he made a further contribution to the definition.1 "The American States, as well as the American people," said he, "have believed a close and firm Union to be essential to their liberty and happiness. They have been taught by experience that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be but a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States.

"Under the influence of this opinion and thus instructed by experience" the people in their respective State Conventions had adopted the Constitution. "If it could be doubted whether from its nature it were not supreme in all cases where it is empowered to act, that doubt would

1 In Cohens vs. The State of Virginia; 6 Wheaton, 264. (1821.)

SUPREMACY OF THE UNION.

489

be removed by the declaration that 'this Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby."" "This," continued he, "is the authoritative language of the American people and of the American States. It marks with lines too strong to be mistaken the characteristic distinction between the government of the Union and those of the States. The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity none can deny its authority." Passing on to certain great conclusions, he declared that the United States for many, and for most important purposes, formed a single Nation. America had chosen to be a Nation, her government was complete and competent to all the objects of nationality. In affecting these objects it could then legitimately control all individuals or governments within the American territory. The Constitution and laws of a State in so far as repugnant to the Constitution and laws of the United States, he declared, were absolutely void. The States were constituent parts of the United States, members of one great empire, for some purposes sovereign, for other purposes subordinate. Thus he reiterated and sustained the principle which Hamilton had laid down thirty years earlier in the Federalist.1

It was in this great decision that he laid down the prin ciple that the mere fact that a State is a party to a suit, brings the case within the jurisdiction of the Federal Courts. Sixteen years before this the Supreme Court had

1 No. XLII.

490

NATIONAL JURISDICTION.

defined the term State,1 That only members of the American Confederacy are the States contemplated in the Constitution and, therefore, that the term State as used in this country did not carry with it "the signification attached to it by the writers on the law of the United States." It is noticeable that Chief-Justice Marshall used the word Confederacy as synonymous for Union, a use common at the time and continued by National Republicans and Free-soilers and later by Republicans.2 In defining the jurisdiction of the United States the court did not neglect, on a proper occasion, to define the jurisdiction of the State as "co-extensive with its territory and with its legislative power."3

The Constitution does not limit the jurisdiction of the United States so as to prevent in any way the expansion of the country beyond its original area. The principle involved was declared by the court in 1828, that "the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties, consequently that government possesses the power of acquiring territory either by conquest or by treaty." Thus, nearly a quarter of a century after the acquisition of Louisiana, and nine years after the acquisition of Florida the constitutionality of those acts was fully sustained. But the defenders of the Louisiana purchase at the time did not base their arguments on the war power of Congress, although Jefferson declared that the foreign power which controlled the mouth of the Mississippi, must necessarily

1 In Hepburn and Dundas vs. Ellzey (1805), 2 Cranch, 445.

2 President Lincoln occasionally used the word "Confederacy"

as equivalent to the Union, or the United States.

• United States vs. Bevans (1818), 3 Wheaton, 337.

The American Insurance Company vs. Canter, 1 Peters, 511. (1828.)

EXPANSION OF THE UNITED STATES.

491

be considered the natural enemy of the United States.1 Forty years later, when the acquisition of Texas was a national issue, its "re-annexation" was urged by Jackson, then an ex-President; by Polk, the Democratic candidate for the Presidency, and by their followers as a measure necessary to the adequate military defense of the country.

As early as 1810, the Court distinguished between the jurisdiction of the United States over the territories and the jurisdiction of the States over their respective domains. The national government inherited the title which the confederacy possessed to the territory northwest and southwest of the Ohio. The title to these regions was derived from the States which made cession of Western lands, and with the cession of the soil there went the cession of the jurisdiction, though in some extent the right to the soil was retained by the State and the right of jurisdiction ceded.3 Thus it followed that the jurisdiction of the United States to that portion of the public domain, not as yet organized in commonwealths, gave to Congress powers which were not exercisable with respect to the States. For this reason, among others, the slavery question became a national issue, for it involved the right of Congress to restrain or abolish slavery and the slave trade in the District of Columbia or in the Territories.

Had the Northwest and Southwest Territories been organized as States prior to the formation of the national government the ordinance of 1787 would probably never have been passed. It is not improbable, however, that even in that case the question of slavery would have arisen in the public domain soon after acquired across the Missis

1 Jefferson's Works, IV, 431. (April 18, 1802.)

2 In Sere et al. vs. Pitot et al., 6 Cranch, 332.

3 For an account of the cession see Vol. I, pp. 229-230.