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is more. It is the case of every eleemosynary institution throughout our country—of all those great charities founded by the piety of our ancestry to alle te hu man misery and scatter blessings along the pathway of life. It is more. It is in some sense the case of every man among us who has property of which he may be stripped, for the question is simply this, 'Shall our State legislatures be allowed to take that which is not their own, to turn it from its original use and apply it to such ends or purposes as they, in their discretions, shall see fit ? Sir, you may destroy this little institution, it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you So, you must carry through your work. You must extinguish, one after another, all those great lights of science which for more than a century have thrown their radiance over our land! It is, sir, as I have said, a small college, and yet there are those who love it. Sir, I know not how others may feel; but for myself, when I see my Alma Mater surrounded, like Cæsar in the Senate House, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me and say, et tu quoque, mi fili, and thou, too, my son.” The court room was moved to tears, for Webster was too noble a soul not to be filled with emotion himself when defending the school at which he studied, and too great an orator to feebly present his cause.
In the same year, 1818, the great case of McCullock against the State of Maryland, * came before the Su
* 4 Wheaton, 316.
preme Court. The United States Bank established a branch in Baltimore, whose cashier, Mr. McCullock, was sued by the State for taxes. The State courts deciding against the bank, the case was carried to the Supreme Court. The Hon. Theophilus Parsons thinks that Chief Justice Marshall's opinion in that case-in which the court concurred—is the finest specimen of judicial logic known to history. It does not detract from a judge who for thirty-five years sat upon the supreme bench, loved and admired by all, to say that his decision was aided by the speeches of Wirt, Webster and Wm. Pinckney, who was one of the greatest lawyers of the present century.
In that case, the court held that if the State of Maryland could tax the United States Bank it could destroy it; that Congress, having control of the purse and sword of the nation, was authorized to pass all laws necessary and proper for the exercise of its powers. In a word, the decision was that the United States Bank was constitutionally established, and that a State could not exercise a power that might destroy a National institution. The Bank did not pay the tax.
In the case of Cohens against the State of Virginia,* it was held that the Supreme Court could exercise jurisdiction when only one of the parties
the suit was a State, the other a citizen of that State; and, in the exercise of its appelate jurisdiction, it could revise the judgment of a State court in a case arising under the laws, treaties and Constitution of the United States.
* 6 Wheaton, 264.
The city of Washington, by authority of Congress, established a lottery. Cohen was indicted at Norfolk, Virginia, for selling lottery tickets, contrary to the State law. In defense, he plead the act of Congress permitting the lottery, but the Supreme Court held, upon appeal to it, that the State law must prevail. The argument of the court, by which it maintained its jurisdiction of the case, is of most importance :
We think,” said Marshall, a case arising under the Constitution, or laws of the United States, is cognizable in the courts of the Union whoever may be the parties to that case. The laws must be executed by individuals acting within the several States. If these individuals
may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be at any time arrested by the will of one of its members. Each member will possess a veto on the will of the whole. These States are members of one great empire--for some purposes sovereign, for some purposes subordinate.
The judicial department can decide on the validity of the Constitution or law of a State if it be repugnant to the Constitution or law of the United States. Is it unreasonable that it should be also empowered to decide on the judgment of a State tribunal enforcing an unconstitutional law ? The words of the United States Constitution must prevail."*
In the case of Osborn † against the United States Bank, Marshall probably made one of his most liberal
* Lives of Chief Justices, by Flanders, vol. ii., p. 454. † 9 Wheaton, 738; 12 Wheaton, 419.
decisions. He there held that unless a State were named as defendant on the record, it could not cite the Eleventh amendment to bar the jurisdiction of the courts of the Union. Thus the courts of the Union have jurisdiction where the State is indirectly a party in consequence of her agents acting by her order and substituted in her place. Otherwise, says Marshall, the agents of the State may inhibit the work of the mail carrier, the collector, the marshal, the recruiting officer, and the Federal courts must submit while the agents of the State obstruct the important work of the nation.
The State of Maryland attempted to make Brown,* an importer of foreign articles, take out a State license before selling a bale or package so imported. Brown refused to take out the license and appealed to the Supreme Court, which held that, while in the original form or package in which the goods were imported, a tax upon them is too plainly a duty on imports to escape the prohibition in the Constitution. The State law was not enforced.
The application of steam to the navigation of our rivers made them more valuable. New York granted to Robt. R. Livingston and Robert Fulton the exclusive privilege of navigating her waters by steamboats. They sold part of their waters to the defendant in the great case of Gibbons against Ogden. Gibbons claimed the right to navigate the waters of New York under the laws of Congress, but the New York courts deciding in favor of Ogden’s exclusive right, Gibbons appealed to the United States Supreme Court.
* Thurlow vs. Mass., Fletcher vs. R. I., Pierce vs N. H.; 5 Howard, 504.
† 9 Wheaton, pp. 1-240.
That court held that the congressional powers to regulate commerce includes the regulation of navigation, and that the laws of New York were held to conflict with the laws of Congress, under which Gibbons held his coasting license. Congress has the exclusive right to regulate commerce in all its forms on all the navigable waters of the United States without any monopoly, restraint or interference created by State legislation, unless that State legislation affects only different parts of the same State and extends to no other State.*
But soon came the days of Chief Justice Taney, who -Federalist as he was—favored a strict construction of the powers granted to the national government, and permitted a New York statute to require the master of every vessel upon arriving in the port of New York, to report in writing respecting his passengers, within twenty-four hours of his arrival. The State was thus enabled to tax the passengers. “This,” says Taney,
was not a regulation of commerce, but a regulation of police, persons not being the subject of commerce, not being imported goods, the States may tax them.”+ The same question arose about ten years
after Chief Justice Taney's first decision on the power of Congress to regulate commerce and then (1849) the majority of the court sustained Marshall's opinion in the case of Gibbons against Ogden, and Taney's opinion was merely one of dissent.
* Const., Art. i., sec. 8.—“Among the several States." † 7 Howard.