Volume IV Part 33 (1/2)
[Ill.u.s.tration: a.s.sociate Justices sitting with Marshall in the case of M'Culloch _versus_ Maryland: STORY, JOHNSON, WAs.h.i.+NGTON, DUVAL, LIVINGSTON, TODD]
Like most of the controversies in which Marshall's Const.i.tutional opinions were p.r.o.nounced, M'Culloch _vs._ Maryland came before the Supreme Court on an agreed case. The facts were that Congress had authorized the incorporation of the second Bank of the United States; that this inst.i.tution had inst.i.tuted a branch at Baltimore; that the Legislature of Maryland had pa.s.sed an act requiring all banks, established ”without authority from the state,” to issue notes only on stamped paper and only of certain denominations, or, in lieu of these requirements, only upon the payment of an annual tax of fifteen thousand dollars; that, in violation of this law, the Baltimore branch of the National Bank continued to issue its notes on unstamped paper without paying the tax; and that on May 8, 1818, John James, ”Treasurer of the Western Sh.o.r.e,” had sued James William M'Culloch, the cas.h.i.+er of the Baltimore branch, for the recovery of the penalties prescribed by the Maryland statute.[784]
The immediate question was whether the Maryland law was Const.i.tutional; but the basic issue was the supremacy of the National Government as against the dominance of State Governments. Indeed, the decision of this case involved the very existence of the Const.i.tution as an ”ordinance of Nationality,” as Marshall so accurately termed it.
At no time in this notable session of the Supreme Court was the bas.e.m.e.nt room, where its sittings were now again held, so thronged with auditors as it was when the argument in M'Culloch _vs._ Maryland took place. ”We have had a crowded audience of ladies and gentlemen,” writes Story toward the close of the nine days of discussion. ”The hall was full almost to suffocation, and many went away for want of room.”[785]
Webster opened the case for the Bank. His masterful argument in the Dartmouth College case the year before had established his reputation as a great Const.i.tutional lawyer as well as an orator of the first cla.s.s.
He was attired in the height of fas.h.i.+on, tight breeches, blue cloth coat, cut away squarely at the waist, and adorned with large bra.s.s b.u.t.tons, waist-coat exposing a broad expanse of ruffled s.h.i.+rt with high soft collar surrounded by an elaborate black stock.[786]
The senior counsel for the Bank was William Pinkney. He was dressed with his accustomed foppish elegance, and, as usual, was nervous and impatient. Notwithstanding his eccentricities, he was Webster's equal, if not his superior, except in physical presence and the gift of political management. With Webster and Pinkney was William Wirt, then Attorney-General of the United States, who had arrived at the fullness of his powers.
Maryland was represented by Luther Martin, still Attorney-General for that State, then seventy-five years old, but a strong lawyer despite his half-century, at least, of excessive drinking. By his side was Joseph Hopkinson of Philadelphia, now fifty years of age, one of the most learned men at the American bar. With Martin and Hopkinson was Walter Jones of Was.h.i.+ngton, who appears to have been a legal genius, his fame obliterated by devotion to his profession and unaided by any public service, which so greatly helps to give permanency to the lawyer's reputation. All told, the counsel for both sides in M'Culloch _vs._ Maryland were the most eminent and distinguished in the Republic.
Webster said in opening that Hamilton had ”exhausted” the arguments for the power of Congress to charter a bank and that Hamilton's principles had long been acted upon. After thirty years of acquiescence it was too late to deny that the National Legislature could establish a bank.[787]
With meticulous care Webster went over Hamilton's reasoning to prove that Congress can ”pa.s.s all laws 'necessary and proper' to carry into execution powers conferred on it.”[788]
a.s.suming the law which established the Bank to be Const.i.tutional, could Maryland tax a branch of that Bank? If the State could tax the Bank at all, she could put it out of existence, since a ”power to tax involves ... a power to destroy”[789]--words that Marshall, in delivering his opinion, repeated as his own. The truth was, said Webster, that, in taxing the Baltimore branch of the National Bank, Maryland taxed the National Government itself.[790]
Joseph Hopkinson, as usual, made a superb argument--a performance all the more admirable as an intellectual feat in that, as an advocate for Maryland, his convictions were opposed to his reasoning.[791] Walter Jones was as thorough as he was lively, but he did little more than to reinforce the well-nigh perfect argument of Hopkinson.[792] On the same side the address of Luther Martin deserves notice as the last worthy of remark which that great lawyer ever made. Old as he was, and wasted as were his astonis.h.i.+ng powers, his argument was not much inferior to those of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence that the power now claimed for Congress was suspected by the opponents of the Const.i.tution, but denied by its supporters and called ”a dream of distempered jealousy.” So came the Tenth Amendment; yet, said Martin, now, ”we are asked to engraft upon it [the Const.i.tution] powers ...
which were disclaimed by them [the advocates of the Const.i.tution], and which, if they had been fairly avowed at the time, would have prevented its adoption.”[793]
Could powers of Congress be inferred as a necessary means to the desired end? Why, then, did the Const.i.tution _expressly_ confer powers which, of necessity, must be implied? For instance, the power to declare war surely implied the power to raise armies; and yet that very power was granted in specific terms. But the power to create corporations ”is not expressly delegated, either as an end or a means of national government.”[794]
When Martin finished, William Pinkney, whom Marshall declared to be ”the greatest man he had ever seen in a Court of justice,”[795] rose to make what proved to be the last but one of the great arguments of that unrivaled leader of the American bar of his period. To reproduce his address is to set out in advance the opinion of John Marshall stripped of Pinkney's rhetoric which, in that day, was deemed to be the perfection of eloquence.[796]
For three days Pinkney spoke. Few arguments ever made in the Supreme Court affected so profoundly the members of that tribunal. Story describes the argument thus: ”Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude to-day. I never, in my whole life, heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement, but his eloquence was overwhelming. His language, his style, his figures, his arguments, were most brilliant and sparkling. He spoke like a great statesman and patriot, and a sound const.i.tutional lawyer.
All the cobwebs of sophistry and metaphysics about State rights and State sovereignty he brushed away with a mighty besom.”[797]
Indeed, all the lawyers in this memorable contest appear to have surpa.s.sed their previous efforts at the bar. Marshall, in his opinion, pays this tribute to all their addresses: ”Both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument seldom, if ever, surpa.s.sed, have been displayed.”[798]
After he had spoken, Webster, who at that moment was intent on the decision of the Dartmouth College case,[799] became impatient. ”Our Bank argument goes on--& threatens to be long,” he writes Jeremiah Mason.[800] Four days later, while Martin was still talking, Webster informs Jeremiah Smith: ”We are not yet thro. the Bank question. Martin has been _talking 3 ds_. Pinkney replies tomorrow & that finishes--I set out for home next day.”[801] The arguments in M'Culloch _vs._ Maryland occupied nine days.[802]
Four days before the Bank argument opened in the Supreme Court, the House took up the resolution offered by James Johnson of Virginia to repeal the Bank's charter.[803] The debate over this proposal continued until February 25, the third day of the argument in M'Culloch _vs._ Maryland. How, asked Johnson, had the Bank fulfilled expectations and promises? ”What ... is our condition? Surrounded by one universal gloom.
We are met by the tears of the widow and the orphan.”[804] Madison has ”cast a shade” on his reputation by signing the Bank Bill--that ”act of usurpation.” Under the common law the charter ”is forfeited.”[805]
The Bank is a ”mighty corporation,” created ”to overawe ... the local inst.i.tutions, that had dealt themselves almost out of breath in supporting the Government in times of peril and adversity.” The financial part of the Virginia Republican Party organization thus spoke through James Pindall of that State.[806]
William Lowndes of South Carolina brilliantly defended the Bank, but admitted that its ”early operation” had been ”injudicious.”[807] John Tyler of Virginia a.s.sailed the Bank with notable force. ”This charter has been violated,” he said; ”if subjected to investigation before a court of justice, it will be declared null and void.”[808] David Walker of Kentucky declared that the Bank ”is an engine of favoritism--of stock jobbing”--a machine for ”binding in adamantine chains the blessed, innocent lambs of America to accursed, corrupt European tigers.”[809] In spite of all this eloquence, Johnson's resolution was defeated, and the fate of the Bank left in the hands of the Supreme Court.
On March 6, 1819, before a few spectators, mostly lawyers with business before the court, Marshall read his opinion. It is the misfortune of the biographer that only an abstract can be given of this epochal state paper--among the very first of the greatest judicial utterances of all time.[810] It was delivered only three days after Pinkney concluded his superb address.
Since it is one of the longest of Marshall's opinions and, by general agreement, is considered to be his ablest and most carefully prepared exposition of the Const.i.tution, it seems not unlikely that much of it had been written before the argument. The court was very busy every day of the session and there was little, if any, time for Marshall to write this elaborate doc.u.ment. The suit against M'Culloch had been brought nearly a year before the Supreme Court convened; Marshall undoubtedly learned of it through the newspapers; he was intimately familiar with the basic issue presented by the litigation; and he had ample time to formulate and even to write out his views before the ensuing session of the court. He had, in the opinions of Hamilton and Jefferson,[811] the reasoning on both sides of this fundamental controversy. It appears to be reasonably probable that at least the framework of the opinion in M'Culloch _vs._ Maryland was prepared by Marshall when in Richmond during the summer, autumn, and winter of 1818-19.
The opening words of Marshall are majestic: ”A sovereign state denies the obligation of a law ... of the Union.... The const.i.tution of our country, in its most ... vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, ... are to be discussed; and an opinion given, which may essentially influence the great operations of the government.”[812] He cannot ”approach such a question without a deep sense of ... the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of _hostility of a still more serious nature_.”[813] In these solemn words the Chief Justice reveals the fateful issue which M'Culloch _vs._ Maryland foreboded.
That Congress has power to charter a bank is not ”an open question....
The principle ... was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department ... as a law of undoubted obligation....
An exposition of the const.i.tution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.”