The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-08-23

let the bitter cup pass from him without
reproach, would drain IL to the bolt ON
But, IL he has no choice In the cass-if there
be no alternative presented to him but a
dereiction Of duty or the opprobrium OF
those who are denominated the world-he
merits the contempt, as we'll az the indiSna-
ton Of his country. who can hesitate which
to embraced"
There IL no doubt that under Marshall
the United States Supreme Court acquired
the energy, weight and dignity which Jay
had considered Indispensable for the effec-
tual exercise OF its functions. During the
thirty-four years that no presided over the
court, l.2l5 cases were decided the reports
OF which will all thirty volumes. In some
thing more than one hundred oases no opin-
ion was given, or. if given, wss reported az
"by the Court" per curiam. or the re-
mainder, Marshall delivered the opinion Of
the court In Ave hundred and nineteen.
on the sixty-two decisions during his time
on questions Of constitutional law, he wrote
the opinion in thirty-six; In twenty-three
OF the latter, comprising most OF his great
! est enorts, there was no dissent. IN the
other thirteen Mr.. veeder has found no dis
senting opinion to he compared with Justice
lredells dissent in Chisholm VI. Georgia,
except the dissenting opinion on Ogden VS..
Saunders, and that was penned by Marshall
himself. He dissented from the majority
but eight times in all.
Contemporaries and later students concur
in opining that the original bias Of Marshall's
! mind was toward general principles and
| comprehensive views rather than to techni-
cal and reconcile learning. His argu menta-
ton was. as Mr.. Phelps has said. that
simple. direct. straightforward. honest
reasoning that silences as demonstration
In Euclid silences. because il convinces I"
Our author points out that His reasoning
was. for the most part, simple, logical de-
duction. unaided by analogies, and unsup-
ported by precedent or authority. Marshalls
type Of mind presented strong contrast to
that of Justice Story. whose concurring
opinion in the Dartmouth College case
bristled with authorities; when examine
a question" said Story, Il 60 from head
land to headland from case to case. Mar
shall has a compass, puts out to sea. and
goes directly to his result
Of the four judicial opinions OF Chief
Justice Marshall here Reproduced one was
delivered in the case of MoCulloch against
the State OF Maryland. The Maryland
branch OF the Bank Of the United States
had refused to pay a tax imposed by the
Maryland Legislature, whereupon the State
instituted an action against the cashier Of
the bank to recover the tax. Judgment was
rendered against McCullooh in the State
court and he carried the case to the United
States Supreme Court by writ of error
1t ia obvious that the case was one of trans
cendent interest 1t involved not merely
the constitutionality Of the act OF Congress-
Incorporating the Bank Of the United States,
but also, and especially. the power OF State
to tax an agency of the Federal Government.
The case was argued by William Pinkney,
Daniel Webster and William Writ for the
bank, and by Luther Martin, Francis Hop
kinson and Walter Jones for the State Of
Maryland, Our author recalls that In the
course Of an argument which Justice Story
pronounced the greatest he had ever heard,
William Pinkney said: Il have a deep and
awful conviction that upon that judgment
1t will depend mainly whether the Consti-
tuition under which we live and prosper IL
phantom OF political power. to deceive and
mock US; a pageant of mimic sovereignty,
calculated to raise up hopes that It may
leave them to perish: frail and tottering
edi1ce than can afford no shelter from
storm, either foreign or domestic: GREAT
ure half made up, without heart or brain, or
nerve, or muscle, without protecting power
or redesming energy: or whether II Ia to
be viewed as competent guardian OF all
that Ia dear to us as a nation The unani-
nous opinion OF the court was written
by John Marshall. After setting forth the
reasons for deciding that the act OF Con-
gress Incorporating the Bank Of the United
States waS constitutional he went on TO
take and establish the position that the act
of the Maryland Legislature imposing a
unconstitutional and void.
The argument on the part Of the State Of
Maryland had been. not that the States
may directly resist q law OF Congress, but
that they may exercise their acknowledged
powers upon IL, such az the power Of taxa
ton. and that the Federal Constitution
leaves them this right in the confidence
that they will not abuse Il. We quote |
Marshall's comment on this argument:
"lf we apply the principle for which the |
State of Maryland contends to the Consti- !
tuition generally. we shall find IL capable |
OF changing totally the character OF that |
instrument. We shall find It capable Of |
arrestng all the measures OF the Govern |
ment and OF Frustrating it at the foot of |
the States. The American people have de. |
clared their Constitution, and the laws
made in pursuance thereof. to be supreme:
but this principle would transfer tho SUI
premacy in fact to the States. II the
States may tax one instrument employed |
by the Government in the execution of its |
powers. they may tax any and every other /
instrument. They may tax the mail they
may tax the mint; they may tax patent |
rights; they may tax the papers OF the Gus
tom house; they may tax judicial process;
they may tax all the means employed by |
he Government 10 an excess which would |
defeat all the ends OF government. This
was not intended by the American people.
They did not design to make their Govern
nent dependent on the States. Gentlemen,
say they do not claim the right to extend
State taxation to these objects. They
init their pretensions to property But on
what principle IL this distinction made9
Those who make it have furnished no reason
or it. and the principle for which they oon-
end denies 1t. They contend that the