Gorham and Langdon, as to what security existed against the States' levying import duties in the guise of tonnage duties:

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There will be the same security as in other cases. The jurisdiction of the Supreme Court must be the source of redress. So far only had provision been made by the plan against injurious acts of the States. His own opinion was, that this was insufficient. negative on the State laws alone could meet all the shapes which this could assume. But this had been overruled."

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A

And thus much for the moment of the intentions of the Convention that framed the Constitution, intentions which at least at all points of interest to our inquiry were frankly presented to the country by the friends of the new system, while its ratification was pending, and which, to say the least, were not underestimated by its opponents, in their terror-stricken appeals to the spirit of localism. Let us turn now to consider how these intentions were cherished and developed by that body to whom falls the final interpretation of the Constitution, during the first generation of our national history, and especially in connection with the maintenance of the supremacy of the national authority over State authority. This is not a matter that we need enter upon in great detail, for our review in the follow

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September 12, Farrand, II, 589. Also "Federalist" (Lodge ed.), Nos. 39 and 78.

ing chapter, of the application made by the Court of the guiding principles of its construction of the Constitution to the treaty-power, will supply adequate illustration of those principles, a rapid review of which will, therefore, suffice at this point.

Because the exact phase of the treaty-power we are dealing with in this essay is its relation to and effect upon certain powers of the States, the first decision to which our attention is drawn is that in Chisholm v. Georgia,18 wherein the Supreme Court was called upon for the first time to evaluate State pretensions that clashed with a national authority. By Article III, paragraph 2, of the Constitution as it originally stood, the judicial power of the United States extended without qualification to controversies between a State and citizens of another State. In Chisholm v. Georgia a citizen of South Carolina was endeavoring to sue the State of Georgia in the United States Supreme Court. Notwithstanding the perfect explicitness of the language of the Constitution, the attorneys for the defendant State contended that the provision of it in question must be construed in light of the principle that a sovereign can be sued only in its own courts and at its own consent, a line of argument in support of which they were unfortunately able to quote Hamilton in "The Federalist" and Marshall in the Virginia convention.19 In other words, State sovereignty 2 Dall. 419 (1793).

18

19" Federalist," No. 81; Elliot, "Debates" (1836), III, 551 f.

was set up as a sort of interpretative principle limiting the operation of the Constitution. Not only was this contention overruled by the Court by a vote of four to one, but in the opinions of Chief Justice Jay and Justice Wilson the applicability of the term sovereign to the governments of the States was flatly denied that designation, they asserted, was appropriate only to the "People of the United States," who had ordained and established the Constitution. At least, said Wilson, putting the whole matter in a nutshell," As to the purposes of the Union, Georgia is not a sovereign State."

The single dissent was by Justice Iredell, who based his argument upon the following proposition: "The United States are sovereign as to all the powers of government actually surrendered. Each State in the Union is sovereign as to all the powers reserved." But, urged the affirming judges, the power of the United States Supreme Court to take jurisdiction of cases arising between a State and citizens of another State is, by the terms of the Constitution, exactly one of the powers surrendered. Obviously, the only way to make sense of Iredell's formula, which he seems to have invented as far back as the North Carolina Convention of 1788, is to regard the so-called "reserved powers" of the States as having been positively reserved, and not simply contingently upon the National Government's not possessing a power susceptible of being exercised in a fashion to traverse them. Or, to put the mat

ter in its converse terms,-Iredell's notion, in support of which he presumes to quote the Tenth Amendment, plainly was, that the States remained under the Constitution in the possession of powers which no national power could be constitutionally extended to invade or transgress.

Chisholm v. Georgia was immediately followed by the adoption of the Eleventh Amendment, taking from the Supreme Court the jurisdiction asserted in that case. Despite this seeming adversity, however, it is difficult to see why that Amendment by the very necessity it admits of specific stipulation when an exception is to be pleaded to the constitutional powers of the National Government, does not confirm the logic of the decision, the practical consequences of which it was adopted to avoid. However this may be, Chisholm v. Georgia does in fact foreshadow the point of view from which the Constitution was to be interpreted by the Supreme Court for more than forty years, thenceforward. Nor is to recognize this to detract from the proper fame of the great Marshall, who for more than a generation manipulated the engines of constitutional exegesis, in the light furnished him by his intimate acquaintance with the dominant spirit of 1787, as well as in the light of his own statesmanlike perception of the needs of a growing nation. It cannot be said of Marshall with entire accuracy, that he "created for us the principles of interpretation which have governed our national development."

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For some of these he would have said all of them -he inherited from the framers of the Constitution and from his precursors on the Supreme Bench. But it can be said of him that so far as he created, he created like a great statesman who sees his way as clearly without precedent as with it to those renderings of charter and statute which will vivify their spirit and enlarge their letter without straining a single tissue of the vital stuff of which they are made.” 20 Marshall shares with Lincoln a certain quality of uniqueness in the annals of statesmanship. For if the career of the one was the singular product of American Democracy, that of the other was the fine fruit of American Constitutionalism.

But turning to consider Marshall's particular contribution to the matter under immediate discussion, we find it to have been his elucidation of that supremacy which is secured to the national law and treaties by Article VI of the Constitution, as the faculty of the national government, in the exercise of its constitutional powers, to displace conflicting State authority of whatsoever sort or upon whatsoever basis pretending to rest. Writing in "The Federalist," Hamilton had already pointed out that the exclusive use of some of its powers is secured to the National Government by the corresponding prohibitions laid upon the States,—such, for exam

20 Woodrow Wilson, United States," 58-9.

Constitutional Government in the