McCulloch v. Maryland—Revisited With Newly Discovered Document
By Michael Wein
A recently auctioned document puts a few historical facts in context of the historic Supreme Court decision in McCulloch v. Maryland, 17 U.S. 316 (1819), holding that a Maryland law seeking to tax the Second National Bank in Baltimore was unconstitutional, under an expansive reading of the Federal Government’s implied powers through the “Necessary and Proper” Clause. Here’s the link to the Ebay auction.
A few tidbits.
1. It’s an “agreed statement of facts,” filed as part of the trial record, in recognition of the forthcoming appeal. The McCulloch opinion by Justice Marshall, (or at least the preceding Reporter notes that were part and parcel of opinions then) specifically references the document a number of times. I think it’s interesting that two sides on such an important case would go out of their way to ensure no tricks or jurisdictional arguments would interfere with Supreme Court review. That doesn’t happen often today.
2. I checked, and can find no reference to the Court of Appeals of Maryland issuing a ruling in this seminal Supreme Court case, and there’s no Maryland Court Report number at all in McCulloch. So I didn’t know that it was apparently a summary affirmance by the Court of Appeals of Maryland before looking into the document. I can find only two references, even in law review articles, to the Court of Appeals in McCulloch issuing an unreported per curiam summary affirmance, which apparently has never been located. I would take issue with a summary affirmance in such an important case, except that, because the tax was by definition in compliance with Maryland law, it would be natural for the Court of Appeals to find there was little point. The only issue was the extent of Supreme Court jurisdiction authority to issue a Writ of Error to find the Maryland law unconstitutional under the United States Constitution, not an interpretation of Maryland’s Constitution or laws.
3. The actual case was not done with briefing, but was argued over the course of about nine days by such luminary attorneys as Daniel Webster and William Pinkney. From research I’ve done previously on this issue, there were no Supreme Court written briefs (or at least any indication they were done) before 1821. By 1849 the Supreme Court was limiting the length of oral arguments and issuing rules on written briefs, which apparently were then just 3-4 page outlines. By 1884, written briefs became the primary form of argument, in that advocates needed to include the legal arguments and authority in support.
 I’ve little doubt the document is authentic. It has the name and apparently signature of the trial attorneys directing it be entered into the case file with the Baltimore County Clerk of Court at the time, Mr. Gibson. And the timing fits with the case, though it may actually clarify a few dates known in the historical record of McCulloch, since the case was apparently affirmed by the Court of Appeals of Maryland in June 1818, (before being put on the Supreme Court docket in September), but the date of the Agreed Statement of Facts is that of May 18, 1818, only about two weeks earlier. This indicates that this document was essentially functioned as a “joint statement of the case” for appeal purposes, similar to what’s available presently under Md. Rule 8-413(b) in creating the Record on appeals in Maryland, when the parties agree on the legal and/or factual issues involved. (Also, I will note as a parenthetical, I was interested in the item since I occasionally collect rare legal documents, but I was not the winning bidder, nor do I know who was.)
 From McCulloch:
“The question submitted to the court for their decision in this case, is, as to the validity of the said act of the general assembly of Maryland, on the ground of its being repugnant to the constitution of the United States, and the act of congress aforesaid, or to one of them. Upon the foregoing statement of facts, and the pleadings in this cause (all errors in which are hereby agreed to be mutually released), if the court should be of opinion, that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs for $2500, and costs of suit. But if the court should be of opinion, that the plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non pros shall be entered, with costs to the defendant.
It is agreed, that either party may appeal from the decision of the county court, to the court of appeals, and from the decision of the court of appeals to the supreme court of the United States, according to the modes and usages of law…”
 “By agreement between the state attorney general and federal officials, it became a test case on the constitutionality of the bank. The Maryland Court of Appeals upheld the Maryland state tax law in an unreported per curiam opinion, setting the stage for an appeal to the Supreme Court. The oral arguments lasted nine days and brought before the Court the leading constitutional lawyers in the country. By way of background, something should be said about four of these lawyers, Webster, Wirt, Pinkney, and Martin. During this period, Supreme Court advocates played a particularly important role. The Court did not receive written briefs, making the oral arguments more critical.” Farber, Daniel, 20 Const. Commentary 679, 691 (2003-2004)
“The case, with M’Culloh as the named party on behalf of the Bank, proceeded quickly through the Maryland courts. The opposing sides agreed on a statement of facts and the Baltimore county court found that the Bank did indeed owe the tax. That judgment was affirmed in June in an unreported per curiam decision by the Maryland Court of Appeals, its highest court. Then, on September 18, 1818, the Supreme Court of the United States placed the case on its docket, issuing a Writ of Error and setting it for argument in its February, 1819 Term.” Killenbeck, Mark, 49 St. Louis L.J. 749, 753 (2005).