Monroe sent Thomas Jefferson copies of the papers he submitted to Congress on this subject. Jefferson replied thankfully, adding that Monroe ought to seek publication of Adams’s efforts in the Leyden Gazette, “from which it would go into the other leading gazettes of Europe. it is of great consequence to us,” the former president explained,

  … & merits every possible endeavor, to maintain in Europe a correct opinion of our political morality. these papers will place us erect with the world in the important cases of our Western boundary, of our military entrance into Florida, & of the execution of Arbuthnot and Ambrister. on the two first subjects it is very natural for an European to go wrong, and to give in to the charge of ambition, which the English papers (read every where) endeavor to fix on us. if the European mind is once set right on these points, they will go with us in all the subsequent proceedings, without further enquiry.

  Jefferson closed by urging Monroe to have Adams return any letter in which the American president was referred to by Onís as “his Excellency,” which put him on a par with “mr Onis himself, with the Governors of provinces, and even of every petty fort in Europe, or the colonies.” Absent such foppery, Jefferson mused, “an American gentleman in Europe can rank with the first nobility because we have no titles which stick him at any particular place in their line.” In his old age Jefferson’s mind carried him back to the Senate debate over Vice President John Adams’s proposal to address President George Washington using a fancy honorific.4

  Not only did Adams’s papers undercut congressional criticism of Jackson and the administration, but they persuaded His Majesty’s Government that Arbuthnot and Ambrister had gotten what was coming to them. As Lord Castlereagh told Minister Richard Rush, popular anger had first been so great that war would have been the result if only the ministry had “held up a finger.” Having read Adams’s arguments, however, Castlereagh decided the two had gotten what they deserved. The spectacle of British swords remaining sheathed after Jackson’s summary treatment of two of King George’s subjects made a mighty impression on European opinion as well. America, it seemed, really was the master of its own continent.

  Most important, as the historian of Adams’s foreign policy statesmanship put it, “It settled the Florida Question.” At the same time Spain’s Foreign Minister Pizarro yielded his office to the same marquis de Casa Yrujo who had held office in the District of Columbia in Jefferson’s day. Yrujo told Onís to make the best deal he could—preferably with a boundary at the Sabine, but definitely with a western boundary “as far north as possible”—which was the first indication that Madrid would accept a transcontinental treaty.5

  On January 30, 1819, the U.S.A. exchanged ratifications of an agreement with the U.K. recognizing the forty-ninth parallel as the boundary between America and Canada all the way to the Rocky Mountains. As a complement, Adams wanted Spain to concede American control of the whole Columbia River basin. What he did not know was that Onís stood ready to cede all of Texas to the United States if that was what it took to end this squabble, and thus free Spain up to try to reestablish control of its South American colonies.

  President Monroe, a bit less confident of America’s position, intervened. At the White House on February 18, 1819, he told Onís, “I will do anything you want. I have had a great personal esteem for you ever since the first day I dealt with you. Have a glass of wine with me.” When next the two met privately, however, Adams told Hyde de Neuville that he was the American officer conducting the negotiation and that taking it up with the president was “improper.” Monroe would be “much and justly displeased if he ha[d] reason to think that a complimentary expression of politeness used by him in answer to a remark made to him by a foreign minister at the drawing-room were to be construed into an abandonment of an important principle in a pending negotiation.” “That is perfectly just,” the French minister/intermediary in the negotiation agreed.

  The Transcontinental Treaty was signed on Washington’s birthday, two days after it was agreed. Onís went to Adams’s office for the signing of the two versions—Spanish and English.6 Adams then took his to the White House, where Monroe’s transmittal message for the Senate was prepared. It was read in the Senate that day, with, as a senator reported to Adams, “universal satisfaction.” After a dinner party Adams arrived home late—“near one in the Morning”—and “closed the day; with ejaculations of fervent gratitude to the giver of all good—It was,” he said, “perhaps the most important day of my life.”

  The chain of events culminating in America’s acquisition of a huge share of Spain’s North American empire, including both Florida and territory connecting the Mississippi River Basin to the Pacific Ocean, had been “brought about in a manner utterly unexpected” through the agency of “the all-wise, and all beneficent disposer of Events … by means the most extraordinary and unforeseen.” Adams exulted, “Its prospects are propitious and flattering in an eminent degree—May they be realized by the same superintending bounty that produced them!” He tried to persuade himself not to “ascribe to [his] own foresight or exertions any portion of the Event,” but could not help gushing over “acquisition of the Florida’s”—“long an object of earnest desire to this Country”—and “acknowledgement of a definite line of boundary to the South Sea” [the Pacific Ocean], which together made this Transcontinental Treaty “a great Epocha in our History.” (Like John Quincy Adams, we recognize this as a phrase his father used, e.g., in the diary entry he wrote the day after the Boston Tea Party.7) “The first proposal of it in this Negotiation,” he continued, “was my own,” and it had never even been hinted at in previous American negotiations. Besides, the American-Spanish relationship would be transformed by the treaty from a state of expectation of war to one centered on “a fair prospect of tranquility and of secure peace.”

  This momentous time in Adams’s superb diplomatic career was not one of unalloyed satisfaction, however. “My Mother,” the secretary of state mused in his diary,

  was an Angel upon Earth—She was a Minister of blessing to all human beings within her sphere of action. Her heart was the abode of heavenly purity. She had no feelings but of kindness and beneficence.… She was the real personification of female virtue—of piety—of charity, of ever active, and never intermitting benevolence—Oh! God! could she have been spared yet a little long!… I have enjoyed but for short seasons and at long distant intervals the happiness of her Society—Yet she has been to me more than a Mother.… without her the world feels to me like a solitude—Oh! what must it be to my father.…—Not my will, heavenly father, but thine be done!8

  And:

  The mail had brought me too fatal a confirmation of my apprehensions, in a Letter from my Son John … informing me that … my Mother, beloved and lamented more than language can express, yielded up her pure and gentle Spirit to its Creator!… Had she lived to the age of the Patriarchs, every day of her life would have been filled with deeds of goodness and of love. There is not a virtue that can abide in the female heart, but it was the ornament of hers. She had been fifty-four years the delight of my father’s heart; the sweetener of all his toils—the comforter of all his sorrows; the sharer and heightener of all his joys—It was but the last time when I saw my father that he told me, with an ejaculation of gratitude to the giver of every good and perfect gift, that in all the vicissitudes of his fortunes, through all the good Report, and evil Report of the World; in all his struggles, and in all his sorrows the affectionate participation, and cheering encouragement of his wife, had been his never failing support.…9

  58

  The night he signed the Transcontinental Treaty, Adams had dinner at a congressional boardinghouse, where he found that conversation focused on the treaty and “the arguments now delivering before the Supreme Court of the United States.”1 The case at hand in the high court, McCulloch v. Maryland, concerned the new Bank of the United States Congress had created in 1816, and Adams’s use of the present tense refers to the Supreme Court’s practice at the time, according to which arguments “invariably lasted longer than a day.”2 Although President Madison had convinced himself to sign the legislation creating this bank into law, many Republicans outside Washington, D.C., remained unconvinced, even passionately opposed.

  Americans had experienced a substantial economic downturn in 1818. European economies, at last having recovered from the wars of the French Revolution and Napoleon, returned to full-scale peacetime production—thus Europeans desired fewer products from the United States. This decline in demand led to declines in prices. For example, where Southern cotton had topped a price of $.30 per pound through virtually all of 1818, it fell to $.015 in 1819. So people cast about for an explanation.3 Many settled on the operations of the Bank of the United States (BUS).

  This was a fair conclusion. After all, the BUS engaged in an unprecedented monetary contraction beginning in December 1817, besides ceasing its policy of ready lending, because both its easy money policy and its readiness to keep other banks’ notes instead of specie on hand threatened to leave the bank without the requisite specie to finance the first payment to France on the Louisiana Purchase, which would come due on October 21, 1818. “As soon as the policy of contraction was announced,” one expert says, “the Bank and its president became the scapegoats for the hard times the nation experienced.”4

  The Bank’s esteem with the public also was not helped by the fact that it had been run corruptly for years. A special House committee to investigate its operations reported in late 1818 that it “had violated its charter by failing to require the payment of specie for its stock, by paying dividends to stockholders who had not completed the purchase of their stock, by allowing numerous irregularities to take place during the election of its board of directors, by making questionable loans, by generally poor management, and by not paying sufficient attention to its public responsibilities.”5

  Several states had adopted anti-BUS measures by 1819. The Indiana Constitution of 1816 and Illinois Constitution of 1818, for example, disallowed establishment within those states’ borders of any bank not chartered therein. Georgia, Tennessee, and North Carolina imposed taxes on out-of-state banks, and Kentucky and Ohio targeted BUS branches specifically. Five states supported a constitutional amendment limiting BUS operations to the District of Columbia. The leading historian of the litigation argues persuasively that these measures were not all motivated by hostility to the BUS. For example, Maryland, North Carolina, and Georgia intended their tax measures to raise revenue. Maryland’s members of Congress, he notes, did not support congressional efforts to strip the BUS of its charter.6 (This of course is not dispositive evidence, as state legislators and members of Congress are elected independently.)

  Six highly esteemed lawyers argued before the Supreme Court in McCulloch v. Maryland, among them the Maryland Philadelphia Convention delegate Luther Martin and an up-and-comer from New Hampshire by way of Massachusetts, Daniel Webster. Yet it seems one attorney had by far the most impact on the case’s outcome, as Justice Joseph Story described Marylander (and former Madison administration attorney general) William Pinkney’s argument in McCulloch by saying, “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.… All the cobwebs of sophistry and metaphysics about state rights and state sovereignty he brushed away with a mighty besom.”7

  That the Court adopted Pinkney’s argument as its own, more or less, would not have shocked any careful watcher of Marshall and his colleagues. In fact Webster claimed that Marshall’s opinion in a famous case still taught in constitutional law courses was “little else than a recital of my argument”—a claim he would not have made if false, as others in the small world of Supreme Court advocates would have recognized it as such. The Supreme Court reporter’s version of Pinkney’s argument shows that Marshall’s opinion for the court in McCulloch included several passages closely imitative of what Pinkney said.8

  Chief Justice Marshall worked backstage before oral argument to ensure that the disputants discussed the issues he wanted them to, as William Pinkney wrote Webster that “I now suppose it will not be necessary [to discuss the shape their presentations would take beforehand], since it is said that little else than the thread bare topics connected with the constitutionality of the Bank will be introduced into the argument.…”9

  Webster kicked off the argument for McCulloch. He said the case presented two issues: whether the BUS’s chartering legislation was constitutional and whether Maryland had a right to tax the Bank. In relation to the former, he relied on Alexander Hamilton’s 1791 argument in President Washington’s Cabinet in favor of the First Bank of the United States.10 All three branches of the Federal Government had acted on the basis of accepting the bank laws’ constitutionality for nearly thirty years, he said, which made it a settled question. His Hamiltonian argument rested on the Necessary and Proper Clause—which he said meant a law must in Congress’s appraisal be “Best and most useful,” not “absolutely indispensable.” This test could only be applied by Congress, not by a court.

  Webster made quick work of the taxation question. If a state could tax a federal instrumentality, he said, it could keep the Federal Government from exercising a constitutional power. Soon after his argument, Webster wrote a friend that “of the decision I have no doubt.”

  Counsel for Maryland replied that while Hamilton’s First Bank of the United States had been necessary and proper, the new Bank was not. Certainly, he said, the power to establish branches all over the country at the will of the Bank’s officers was not needed for the BUS to perform the functions the Federal Government needed it to perform. As to the power of this private corporation to enter a state and exercise powers “and privileges possessed by no other persons, corporations or property in the State,” this again seemed an easy question. Maryland’s power to tax was the “highest attribute of sovereignty,” and Maryland was exercising it to raise revenue, not to restrict the BUS’s operations. Too, this bank did not possess any attribute of sovereignty, but was merely a private corporation in business to make money. The United States merely owned shares. Maryland had done nothing that hinted at destroying the BUS branch by taxing it. William Wirt answered for McCulloch that a power to tax could be used to destroy, “and nothing but their own discretion can impose a limit upon this exercise of their authority.”

  Luther Martin, the attorney general of Maryland and an effective delegate to the Philadelphia Convention, closed for Maryland. An Antifederalist then and a Federalist now, Martin harkened back to ratification days, when he and his then-fellows had warned that the new government’s powers would be broadened by construction—when “this apprehension was treated as a dream of distempered jealousy” by Federalists. “We are now called upon,” he said, “to apply that theory of interpretation which was then rejected by the friends of the new constitution, and we are asked to engraft upon it powers of vast extent, which were disclaimed by them, and which, if they had been fairly avowed at the time, would have prevented its adoption.” “The power of establishing corporations,” he concluded matter-of-factly, “is not delegated to the United States.”11 So too with regard to the power of taxation, he recalled that states’ power had only been limited in connection with imports and exports, and that “[t]he states would not have adopted the Constitution upon any other understanding.”12

  At last came Pinkney and the speech Justice Story so admired. He began by saying the people, not the states had created the Federal Government. “No state, in its corporate capacity ratified it; but it was proposed for adoption to popular conventions. It springs from the people.… The state sovereignties are not the authors of the Constitution of the United States.”13 Unfortunately we have no surviving commentary of any of the counsel for Maryland or the Supreme Court justices on this howler of a claim. Surely all of them knew that Article VII of the Constitution says that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” If “the States so ratifying the Same” were not “state[s] … in their corporate capacit[ies]”—if ratification conventions are not in the federal system stand-ins for the states “in their corporate capacit[ies]”—one could wish we had Pinkney’s explanation of what they are. Certainly Luther Martin, the Maryland counsel whose argument he was answering, understood what a ratification convention was in the Constitution’s system: it was the sovereign people of its state incarnate. That was why it had power to delegate a state’s authority to the new government and to adopt the federal charter’s new limitations on state power for its state. Pinkney concluded by reasserting that a state power to tax a federal instrumentality must be disallowed, as it was “a direct interference with the legislative faculty of Congress.”

  Less than three days after oral argument, Chief Justice Marshall read from the bench his court’s explanatory opinion in favor of McCulloch/the Bank of the United States on both of the questions at issue. As R. Kent Newmyer, biographer of both Marshall and Story, described it, Marshall’s opinion took as its “foundational proposition … that the Constitution was created by the American people and was intended to govern a great nation.” He answered Martin and company on the issue of enumeration of powers by saying that, in Newmyer’s words, “it was not a legal code encumbered with a ‘prolixity’ of details that ‘could scarcely be embraced by the human mind’ and that ‘would probably never be understood by the public.’” What powers the Federal Government had would be “deduced from the nature of the objects themselves.” Somewhat mischievously he said that “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the power it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.”14