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THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835
States, which had a branch office in Baltimore, led to McCulloch v.
Maryland, a case for which the Marshall Court was waiting. Not only
was the constitutionality of state taxation of a national bank at issue; the
case also had clear ramifications for federal internal improvements pro-
grams, whose constitutionality was in doubt at the time. McCulloch was
speedily dispatched to the Marshall Court. A Maryland state official sued
James William McCulloch, the cashier of the Baltimore office of the Bank
of the United States, to enforce the tax. The Maryland Court of Appeals,
in an unreported per curiam decision, upheld the state's power to collect
the tax, and attorneys for the Bank immediately filed a writ of error to
the Marshall Court, accompanied by a stipulated set of facts.158 The
National Intelligencer identified MC-CM//W// as a "great case" even before
arguments began.159
The Court, recognizing the significance of McCulloch, waived its
customary rule "permitting only two counsel to argue for each party,"160
and six lawyers took part in the argument. Daniel Webster, for James
McCulloch, opened the arguments on February 22, followed by Hopkin-
son for Maryland, William Wirt for McCulloch, and Walter Jones for
Maryland. On Thursday afternoon, February 5, Martin began his argu-
ment, with William Pinkney to follow in rebuttal for McCulloch. Martin
spoke through Saturday afternoon, February 27. Wheaton's Reports give
a bare summary of the argument, which, contemporary accounts reveal,
was characteristically long, rambling, and exhaustive,161 and was also
highly personalized. Martin devoted the bulk of his argument to "the
contemporary exposition of the constitution by its authors,"'62 of which
he was one, to show that the doctrine of implied powers, on which sup-
porters of the Bank's constitutionality relied, had been "rejected by the
friends of the new constitution [and], ... if [it] had been fairly avowed
at the time, would have prevented its adoption." The "only safe rule,"
Martin contended, "is the plain letter of the constitution." And since
"the power of establishing corporations" was "not delegated [by the
Framers] to the United States, nor prohibited to the individual states, [i]t
is therefore reserved to the States ... or to the people."163 But even if
one concluded "that Congress has a right to incorporate a banking com-
pany," Martin continued, the States could still tax banks "within their
158 4 Wheat, at 317.
15g Washington National Intelligen-
cer, [Saturday], Feb. 20, 1819. Argu-
ments began on the following Monday.
160 See 4 Wheat, at 322.
161 William Pinkney began his rebut-
tal to Martin and his co-counsel by say-
ing: "We have had the affecting retro-
spections of Mr. Martin upon scenes
238
. . . [the Convention debates] which
. . . , luckily for the time of the court,
had their commencement at an epoch
considerably subsequent to the flood."
Quoted in Whcaton, Some Account,
163-64.
162 4 Wheat, at 372.
"" Ibid.. 373-74-
Chapter IV: Prominent Lawyers Before the Marshall Court
territory." Again he used original constitutional language and debates to
buttress a point. "[T]he [Philadelphia] Convention," he argued, "found
... the subject of taxation . . . impossible to solve in a manner entirely
satisfactory." But "the debates in the state conventions show that the
power of State taxation was understood to be absolutely unlimited, except
as to imports and tonnage duties." The states, Martin claimed, "would
not have adopted the constitution upon any other understanding."164
By concentrating on the history of the Constitution Martin reminded
the Court of his direct participation as a Framer and of his venerable
status. He also reminded the Justices of their own close connections with
the Framers' generation.165 Near the close of his argument, in the course
of reading from state ratifying convention debates on the taxing power,
Martin announced to the Justices that "he had one last authority which
he thought the Court would admit to be conclusive," and then read pas-
sages from the dictates of the Virginia ratifying convention of 1788. The
speaker whose words Martin called to the Court's attention was John
Marshall, who reportedly drew a deep breath as Martin began his reci-
tation.166 Marshall had said, in 1788, that "the powers not denied to the
states are not vested in them by implication, because, being possessed of
them antecedent to the adoption of the government, and not being divested
of them, by any grant or restruction in the Constitution, the states must
be as fully possessed of them as ever they had been."167 Marshall re-
portedly told Story, "I was afraid I had said some foolish things in that
debate; but it was not so bad as 1 expected";168 and Martin's side lost
the McCulloch case: Marshall's unanimous opinion held that Congress
could create a bank and that the states could not tax its "operations."169
But Martin's argument has been remembered as one of his best per-
formances. Albert Beveridge characterized it as "the last worthy of re-
164 Ibid., 375-76.
165 Martin interjected in his refer-
ences to the Philadelphia convention a
parenthetical paraphrase of the Aeneid.
"quorum pars [minima] fuit," thereby
reminding his audience that he had
"played a very [small] part" in the de-
liberations that resulted in the Consti-
tution. Pinkney in rebuttal then re-
sponded,
"quorum pars magna (or minima)
fuit" (for I will not object to [Mar-
tin's amendment of the original
Latin], lest I should distress the mod-
esty that suggested it. ...
Quoted in Wheaton. Some Account.
163-64.
166 The quotation from Martin's ar-
gument, and Marshall's response, are
taken from an anecdote told by Story in
late 1844 or early 1845 to Alexander H.
Stephens, then a congressman from
Georgia, quoted in R. Johnson and W.
Browne, Life of Alexander H. Stephens
(1870). 183. For the context of the an-
ecdote, see ibid., 176-83.
1('7 Quoted in D. Robertson, Debates
and Other Proceedings of the Conven-
tion of Virginia (2d ed.. 1805), 298.
168 Quoted in Johnson and Browne,
Alexander H. Stephens, 183.
169 Ibid., 437. See discussion in
Chapter VIII. "
239
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