pages of the Federalist.1 Marshall had frequent occasion to consider this clause and he applied to it the rules of construction which he uniformly adopted where a liberal construction was vital to the supremacy of the Constitution. Years later in the great case of McCulloch v. Maryland, Marshall referring, inter alia, to this clause laid down the well known canon: 2 "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 construction has ever since been followed, and was notably applied in the Slaughter-House Cases and the Legal-Tender Cases."

In connection with this subject it is not amiss to insert the expressive language of Justice Johnson in delivering the opinion of the court in Anderson v. Dunn, 6 Wheaton, 204: The idea is Utopian that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility and stated appeals to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.'

995

REFERENCES TO UNITED STATES v. FISHER et al. IN MARSHALL MEMORIAL

Marshall maintained the authority of Congress to make all laws necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States. Hon. John Bassett Moore, I, 518.

From 1805 in the case of the United States against Fisher to the last day of his service he (Marshall) never missed an opportunity to

1 Federalist, No. xxxiii, also Madison, No. xliv.

2 Tucker, Const. of U. S., I, 361; Thorpe, Const. Hist. of U. S., II, 487. 316 Wall. 36.

12 Wall. 457.

See also Miller, Const. of U. S., 417, 418.

assert the supremacy of the Federal Government on all matters committed to it by the Constitution as the vital principle of our national existence, nor to show by irresistible logic that to question its sovereignty was to plot its destruction. W. Bourke Cochran, I, 412.

In 1805, in the United States against Fisher, he (Marshall) found in the clause of the Constitution giving Congress the right to pass all necessary and proper laws for carrying into execution the powers vested in them by the Constitution, authority for a law making the United States a preferred creditor. Henry Cabot Lodge, II, 329; Hon. Henry Hitchcock, II, 515.

THE DISTRICT OF COLUMBIA IS NOT A "STATE" WITHIN THE MEANING OF THE CONSTITUTION.

Hepburn and Dundas v. Ellzey.

FEBRUARY TERM, 1805.

[2 Cranch's Reports, 445-453.]

The proposition of law decided is thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States:

The District of Columbia is not 66 a State " within the meaning of that term as used in the Constitution, and its citizens cannot sue in the courts of the United States as citizens of any State.

Hepburn and Dundas, who were citizens of the District of Columbia, sued Ellzey, who was a citizen of Virginia, in the United States Circuit Court holden in the District of Virginia, and this question arose:

"Are citizens of the District of Columbia citizens of a State within the meaning of the sec

Is the District of Columbia a "State" within the meaning of art. 3, sec. 2, of the Constitution of U. S.

ond section of the third article of the Constitution of the United States?" The judges of the Circuit Court being opposed in opinion upon this question, it was brought before the Supreme Court,' the opinion of which was given as follows:

1 The court was constituted as follows:

JOHN MARSHALL, Chief Justice.

WILLIAM CUSHING,

WILLIAM PATERSON,

SAMUEL CHASE,

BUSHROD WASHINGTON,

Associate Justices.

The case was argued by E. J. Lee for the plaintiffs and by Charles

Lee for the defendant.

MARSHALL, Chief Justice. The question in this case is whether the plaintiffs, as residents of the District

Opinion.

of Columbia, can maintain an action in the Circuit Court of the United States for the District of Virginia. This depends on the act of Congress describing the jurisdiction of that court. That act gives jurisdiction to the Circuit Courts in cases between a citizen of the State

Under an act of Congress Circuit Court has jurisdiction in cases between a citizen of the State where suit is

another State.

in which the suit is brought and a citi- brought and citizen of zen of another State. To support the jurisdiction in this case, therefore, it must appear that Columbia is a State.

On the part of the plaintiffs it has been urged that Columbia is a distinct political society, and is therefore "a State," according to the definitions of writers on general law.

This is true. But as the act of Congress obviously uses the word "State" in reference to that term as used in the Constitution, it becomes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American Confederacy only are the States contemplated in the Constitution.

The House of Representatives is to be composed of members chosen by the people of the several States; and each State shall have at least one representative.

The Senate of the United States shall be composed of two Senators from each State.

Each State shall appoint for the election of the executive a number of electors equal to its whole number of Senators and Representatives.

These clauses show that the word

"State" is used in the Constitution as

Certain clauses show that the word “State " is used in the Constitution as designating a

designating a member of the Union, member of the Union.

and excludes from the term the signifi

cation attached to it by writers on the laws of nations. When the same term, which has been used plainly in this limited sense, in the articles respecting the Legislative and Executive Departments, is also employed in that which respects the Judicial Department, it must be understood as retaining the sense originally given to it.

Other passages from the Constitution have been cited by the plaintiffs to show that the term "State" is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them.

It is true that, as citizens of the United States, and of that particular district which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the Union, should be closed upon them. But this is a question for legislative, not for judicial consideration.

The opinion to be certified to the Circuit Court is, that that court has no jurisdiction in the case.

NOTE

See Tucker, Const. of U. S., II, 600, 787, 792; Scott v. Jones, 5 How. 343, 377; Thorpe, Const. Hist. of U. S., II, 490; Kent, Com. (12th ed.), 1, 349c, 3856.