I cannot now speak of these cases in de tail; only on one or two of them is there time to comment at all. If we regard at once the greatness of the questions at issue in the particular case, the influence of the opin ion, and the large method and clear and skill ful manner in which it is worked out, there is nothing so fine as the opinion in McCulloch i'. Maryland. The questions were, first, whether the United States could constitu tionally incorporate a bank, and, second, if it could, whether a State might tax the oper ations of the bank; as, in this instance, by requiring it to use stamped paper for its notes. The bank was sustained and the tax condemned. In working this out, it was laid down that while the United States is merely a government of enumerated powers, and these do not in terms include the granting of an incorporation; yet it is a government whose powers, though limited in number, are, in general, supreme, and also adequate to the great national purposes for which they are given; that these great purposes carry with them the power of adopting such means, not prohibited by the Constitution, as are fairly conducive to the end; and that incorporating a bank is not forbidden, and is useful for several ends. Further, the para mount relation of the national government, whose valid laws the Constitution makes the supreme law of the land, forbids the States to tax, or to "retard, impede, burden or in any way control" the operations of the government in any of its instrumentalities. This was the opinion of a unanimous court, in which five out of the seven Judges had been nominated by a Republican President.1 Nor must we forget that while Marshall was resolved to extend the power of the na tion to its proper limits, he was as careful not to extend it beyond those limits. His desires on this point "are very clearly shown in the celebrated case of McCulloch v. Mary1 Professor Thayer.
land, the question in which was the right of the State of Maryland to tax a branch of the United States Bank, a corporation cre ated* by Congress as a part of the financial administration of the government. The case was especially interesting as the United States claimed that the tax law of the State was invalid as contrary to the Constitution, and the State claimed that the act of Con gress creating the Bank was invalid, as be yond the powers given to Congress. In his opinion. Marshall first discusses the last point. lie admitted that the Constitution gave no express power to create a bank, in terms, but held that it existed as part of the power "to make all laws that shall be neces sary and proper to carry into execution the powers given to the government," saying "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 consist with the letter and spirit of the Constitution, are constitutional." This, I believe, is the furthest extent to which Marshall ever carried the doctrine of powers not directly given by the Consti tution, but only to be implied from it. That doctrine, first enunciated by him, has been questioned by those who may be called strict constructionists, and Marshall has been criti cised and accused of unduly and improperly extending the powers of government. Of course, such a principle, like most others, may be carried to too great an extent. It will appear, however, to any unprejudiced observer of Marshall's opinions, and of the reasoning by which he establishes the doc trine, that it is an absolutely necessary one, without which not only the operations of the government would be seriously embarrassed, but almost destroyed. In the final analysis it will be seen that the real objection has always been to the application of the princi ple to particular instances, rather than to the principle itself.1 1 Honorable Charles E. Perkins.
