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 institutions, 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 assailed 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 Constitution, 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 document. 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 constitution 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 constitution, 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 passed 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, & pass unobserved," says Marshall. Moreover, it had been carefully examined with "persevering talent" in Washington's Cabinet. When that act expired, "a short experience of the embarrassments" suffered by the country "induced the passage of the present law." He must be intrepid, indeed, who asserts that "a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance."[814]
But Marshall examines the question as though it were "entirely new"; and gives an historical account of the Constitution which, for clearness and brevity, never has been surpassed.[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 constitution 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]