The Life of John Marshall Volume IV Part 33

[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."

The first Congress pa.s.sed the act to incorporate a National bank. The whole subject was at the time debated exhaustively. "The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, & pa.s.s un.o.bserved," says Marshall. Moreover, it had been carefully examined with "persevering talent" in Was.h.i.+ngton's Cabinet. When that act expired, "a short experience of the embarra.s.sments" suffered by the country "induced the pa.s.sage of the present law." He must be intrepid, indeed, who a.s.serts that "a measure adopted under these circ.u.mstances was a bold and plain usurpation, to which the const.i.tution gave no countenance."[814]

But Marshall examines the question as though it were "entirely new"; and gives an historical account of the Const.i.tution which, for clearness and brevity, never has been surpa.s.sed.[815] Thus he proves that "the government proceeds directly from the people; ... their act was final.

It required not the affirmance, and could not be negatived, by the state governments. The const.i.tution when thus adopted ... bound the state sovereignties." The States could and did establish "a league, such as was the confederation.... But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, ... acting directly on the people," it was the people themselves who acted and established a fundamental law for their government.[816]

The Government of the American Nation is, then, "emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit"[817]--a statement, the grandeur of which was to be enhanced forty-four years later, when, standing on the battle-field of Gettysburg, Abraham Lincoln said that "a government of the people, by the people, for the people, shall not perish from the earth."[818]

To be sure, the States, as well as the Nation, have certain powers, and therefore "the supremacy of their respective laws, when they are in opposition, must be settled." Marshall proceeds to settle that basic question. The National Government, he begins, "is supreme within its sphere of action. This would seem to result necessarily from its nature." For "it is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts." Plain as this truth is, the people have not left the demonstration of it to "mere reason"--for they have, "in express terms, decided it by saying" that the Const.i.tution, and the laws of the United States which shall be made in pursuance thereof, "shall be the supreme law of the land," and by requiring all State officers and legislators to "take the oath of fidelity to it."[819]

The fact that the powers of the National Government enumerated in the Const.i.tution do not include that of creating corporations does not prevent Congress from doing so. "There is no phrase in the instrument which, like the articles of confederation, _excludes_ incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.... A const.i.tution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public."

The very "nature" of a const.i.tution, "therefore requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those _objects be deduced from the nature of the objects themselves_." In deciding such questions "we must never forget," reiterates Marshall, "that it is a _const.i.tution_ we are expounding."[820]

This being true, the power of Congress to establish a bank is undeniable--it flows from "the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." Consider, he continues, the scope of the duties of the National Government: "The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.... A government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarra.s.s its execution by withholding the most appropriate means."[821]

At this point Marshall's language becomes as exalted as that of the prophets: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed." Here Marshall the soldier is speaking. There is in his words the blast of the bugle of Valley Forge.

Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was fas.h.i.+oned in the army of the Revolution.[822]

The Chief Justice continues: "Is that construction of the const.i.tution to be preferred which would render these operations difficult, hazardous, and expensive?" Did the framers of the Const.i.tution "when granting these powers for the public good" intend to impede "their exercise by withholding a choice of means?" No! The Const.i.tution "does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers."[823]

Resorting to his favorite method in argument, that of repet.i.tion, Marshall again a.s.serts that the fact that "the power of creating a corporation is one appertaining to sovereignty and is not expressly conferred on Congress," does not take that power from Congress. If it does, Congress, by the same reasoning, would be denied the power to pa.s.s most laws; since "all legislative powers appertain to sovereignty." They who say that Congress may not select "any appropriate means" to carry out its admitted powers, "take upon themselves the burden of establis.h.i.+ng that exception."[824]

The establishment of the National Bank was a means to an end; the power to incorporate it is "as incidental" to the great, substantive, and independent powers expressly conferred on Congress as that of making war, levying taxes, or regulating commerce.[825] This is not only the plain conclusion of reason, but the clear language of the Const.i.tution itself as expressed in the "necessary and proper" clause[826] of that instrument. Marshall treats with something like contempt the argument that this clause does not mean what it says, but is "really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers"--a denial, in short, that, without this clause, Congress is authorized to make laws.[827] After conferring on Congress all legislative power, "after allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind ... of the convention that an express power to make laws was necessary to enable the legislature to make them?"[828]

In answering the old Jeffersonian argument that,[829] under the "necessary and proper" clause, Congress can adopt only those means absolutely "necessary" to the execution of express powers, Marshall devotes an amount of s.p.a.ce which now seems extravagant. But in 1819 the question was unsettled and acute; indeed, the Republicans had again made it a political issue. The Chief Justice repeats the arguments made by Hamilton in his opinion to Was.h.i.+ngton on the first Bank Bill.[830]

Some words have various shades of meaning, of which courts must select that justified by "common usage." "The word 'necessary' is of this description.... It admits of all degrees of comparison.... A thing may be necessary, very necessary, absolutely or indispensably necessary."

For instance, the Const.i.tution itself prohibits a State from "laying 'imposts or duties on imports or exports, except what may be _absolutely_ necessary for executing its inspection laws'"; whereas it authorizes Congress to "'make all laws which shall be necessary and proper'" for the execution of powers expressly conferred.[831]

Did the framers of the Const.i.tution intend to forbid Congress to employ "_any_" means "which might be appropriate, and which were conducive to the end"? Most a.s.suredly not! "The subject is the execution of those great powers on which the welfare of a nation essentially depends." The "necessary and proper" clause is found "in a const.i.tution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.... To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circ.u.mstances."[832]

The contrary conclusion is tinged with "insanity." Whence comes the power of Congress to prescribe punishment for violations of National laws? No such general power is expressly given by the Const.i.tution. Yet n.o.body denies that Congress has this general power, although "it is expressly given in some cases," such as counterfeiting, piracy, and "offenses against the law of nations." Nevertheless, the specific authorization to provide for the punishment of these crimes does not prevent Congress from doing the same as to crimes not specified.[833]

Now comes an example of Marshall's reasoning when at his best--and briefest.

"Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another.

And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

"The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be ill.u.s.trated by numerous examples drawn from the const.i.tution, and from our laws. The good sense of the public has p.r.o.nounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his const.i.tutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise."[834]

To attempt to prove that Congress _might_ execute its powers without the use of other means than those absolutely necessary would be "to waste time and argument," and "not much less idle than to hold a lighted taper to the sun." It is futile to speculate upon imaginary reasons for the "necessary and proper" clause, since its purpose is obvious. It "is placed among the powers of Congress, not among the limitations on those powers. Its terms purport to enlarge, not to diminish the powers vested in the government.... If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on the vast ma.s.s of incidental powers which must be involved in the const.i.tution, if that instrument be not a splendid bauble."[835]

Marshall thus reaches the conclusion that Congress may "perform the high duties a.s.signed to it, in the manner most beneficial to the people."

Then comes that celebrated pa.s.sage--one of the most famous ever delivered by a jurist: "Let the end be legitimate, let it be within the scope of the const.i.tution, 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 const.i.tution, are const.i.tutional."[836]

Further on the Chief Justice restates this fundamental principle, without which the Const.i.tution would be a lifeless thing: "Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pa.s.s the line which circ.u.mscribes the judicial department, and to tread on legislative ground. The court disclaims all pretensions to such a power."[837]

The fact that there were State banks with whose business the National Bank might interfere, had nothing to do with the question of the power of Congress to establish the latter. The National Government does not depend on State Governments "for the execution of the great powers a.s.signed to it. Its means are adequate to its ends." It can choose a National bank rather than State banks as an agency for the transaction of its business; "and Congress alone can make the election."