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 Constitutional lawyer as well as an orator of the first class. He was attired in the height of fashion, tight breeches, blue cloth coat, cut away squarely at the waist, and adorned with large brass buttons, waist-coat exposing a broad expanse of ruffled shirt 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 Washington, 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 "pass all laws 'necessary and proper' to carry into execution powers conferred on it."[788]
Assuming the law which established the Bank to be Constitutional, 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 astonishing 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 Constitution, 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 Constitution] powers ... which were disclaimed by them [the advocates of the Constitution], 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 Constitution 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 constitutional 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 surpassed 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, surpassed, have been displayed."[798]