In 1789 General Washington is said to have offered John Jay his choice of offices under the new government, and Jay chose the chief justiceship, because there he thought he could make his influence felt most widely.  If so he had his wish, and very shortly met with disappointment.  In the August Term of 1792, one Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt.  Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, gave judgment for Chisholm.  Jay was followed by his associates with the exception of Iredell, J., of North Carolina.  Forthwith a ferment began, and in the very next session of Congress an amendment to the Constitution was proposed to make such suits impossible.  In January, 1798, five years after the case was argued, this amendment was declared to be adopted, but meanwhile Jay had resigned to become governor of New York.  In December, 1800, he was again offered the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely declined.  I have often wondered whether Jay’s mortification at having his only important constitutional decision summarily condemned by the people may not have given him a distaste for judicial life.

The Federalist attempt to enforce on the states a positive rule of economic morality, therefore, collapsed at once, but it still remained possible to approach the same problem from its negative side, through the clause of the Constitution which forbade any state to impair the validity of contracts, and Marshall took up this aspect of the task where Jay left it.  In Marshall’s mind his work was simple.  He had only to determine the nature of a contract, and the rest followed automatically.  All contracts were to be held sacred.  Their greater or less importance was immaterial.

In 1810 Marshall expounded this general principle in Fletcher v.  Peck.[18] “When ... a law is in its nature a contract ... a repeal of the law cannot devest” rights which have vested under it.  A couple of years later he applied his principle to the extreme case of an unlimited remission of taxation.[19] The State of New Jersey had granted an exemption from taxation to lands ceded to certain Indians.  Marshall held that this contract ran with the land, and inured to the benefit of grantees from the Indians.  If the state cared to resume its power of taxation, it must buy the grant back, and the citizens of New Jersey must pay for their improvidence.

Seven years later, in 1810, Marshall may, perhaps, be said to have reached the culmination of his career, for then he carried his moral standard to a breaking strain.  But, though his theory broke down, perhaps the most striking evidence of his wonderful intellectual superiority is that he convinced the Democrat, Joseph Story,—­a man who had been nominated by Madison to oppose him, and of undoubted strength of character,—­of the soundness of his thesis.  In 1769 King George III incorporated certain Trustees