the Supreme Court stood to its guns and again held the Kentucky land laws unconst.i.tutional. Yet so grave was the crisis that the decision was not handed down for a whole year. This time the opinion of the court was delivered on February 27, 1823, by Bushrod Washington, who held that the contract clause of the National Const.i.tution was violated, but plainly considered that "the principles of law and reason"[1059] were of more importance in this case than the Const.i.tutional provision. Washington"s opinion displays the alarm of the Supreme Court at the a.s.saults upon it: "We hold ourselves answerable to G.o.d, our consciences and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may."[1060]
Kentucky promptly replied. In his Message to the Legislature, Governor John Adair declared that the Kentucky decisions of the Supreme Court struck at "the right of the people to govern themselves." The National authority can undoubtedly employ force to "put down insurrection," but "that ... day, when the government shall be compelled to resort to the bayonet to compel a state to submit to its laws, will not long precede an event of all others to be deprecated."[1061]
One of Marshall"s numerous Kentucky kinsmen, who was an active member of the Legislature, stoutly protested against any attack on the Supreme Court; nevertheless he offered a resolution reciting the grievances of the State and proposing an address "to the supreme court of the United States, in full session," against the decision and praying for "its total and definitive reversal."[1062] What! exclaimed John Rowan, another member of the Legislature, shall Kentucky again pet.i.tion "like a degraded province of Rome"?[1063] He proposed counter-resolutions that the Legislature "do ... most solemnly PROTEST ... against the erroneous, injurious, and degrading doctrines of the opinion ... in ... Green and Biddle."[1064] When modified, Rowan"s resolutions, one of which hinted at forcible resistance to the mandate of the Supreme Court, pa.s.sed by heavy majorities.[1065] Later resolutions openly threatened to "call forth the physical power of the state, to resist the execution of the decisions of the court," which were "considered erroneous and unconst.i.tutional."[1066]
In the same year that the Supreme Court decided the Kentucky land case, Justice Johnson aroused South Carolina by a decision rendered in the United States District Court of that State. One Henry Elkison, a negro sailor and a British subject, was taken by the sheriff of the Charleston district, from the British ship Homer; and imprisoned under a South Carolina law which directed the arrest and confinement of any free negro on board any ship entering the ports of that State, the negro to be released only when the vessel departed.[1067] Johnson wrathfully declared that the "unconst.i.tutionality of the law ... will not bear argument"--n.o.body denied that it could not be executed "without clashing with the general powers of the United States, to regulate commerce."
Thereupon, one of the counsel for the State said that the statute must and would be enforced; and "that if a dissolution [_sic_] of the union must be the alternative he was ready to meet it"--an a.s.sertion which angered Johnson who delivered an opinion almost as strong in its Nationalism as those of Marshall.[1068]
Throughout South Carolina and other slaveholding States, the action of Justice Johnson inflamed the pa.s.sions of the white population. "A high state of excitement exists," chronicles Niles.[1069] Marshall, of course, heard of the outcry against his a.s.sociate and promptly wrote Story: "Our brother Johnson, I perceive, has hung himself on a democratic snag in a hedge composed entirely of th.o.r.n.y state rights in South Carolina.... You ... could scarcely have supposed that it [Johnson"s opinion] would have excited so much irritation as it seems to have produced. The subject is one of much feeling in the South.... The decision has been considered as another act of judicial usurpation; but the sentiment has been avowed that if this be the const.i.tution, it is better to break that instrument than submit to the principle.... Fuel is continually adding to the fire at which _exaltees_ are about to roast the judicial department."[1070]
The Governor and Legislature of South Carolina fiercely maintained the law of the State--it was to them a matter of "self-preservation." Niles was distressingly alarmed. He thought that the collision of South Carolina with the National Judiciary threatened to disturb the harmony of the Republic as much as the Missouri question had done.[1071]
This, then, was the situation when the Ohio Bank case reached the Supreme Court.[1072] Seven States were formally in revolt against the National Judiciary, and others were hostile. Moreover, the protective Tariff of 1824 was under debate in Congress; its pa.s.sage was certain, while in the South ever-growing bitterness was manifesting itself toward this plundering device of Nationalism as John Taylor branded it. In the House Southern members gave warning that the law might be forcibly resisted.[1073] The first hints of Nullification were heard. Time and again Marshall"s Nationalist construction of the Const.i.tution was condemned. To the application of his theory of government was laid most of the abuses of which the South complained; most of the dangers the South apprehended.
Thus again stands out the alliance of the various forces of Localism--slavery, State banking, debtors" relief laws, opposition to protective tariffs--which confronted the Supreme Court with threats of physical resistance to its decrees and with the ability to carry out those threats.
Two arguments were had in Osborn _vs._ The Bank of the United States, the first by Charles Hammond and by Henry Clay for the Bank;[1074] the second by John C. Wright, Governor Ethan Allen Brown, and Robert Goodloe Harper, for Ohio, and by Clay, Webster, and John Sergeant for the Bank.
Arguments on both sides were notable, but little was presented that was new. Counsel for Ohio insisted that the court had no jurisdiction, since the State was the real party against which the proceedings in the United States Court in Ohio were had. Clay made the point that the Ohio tax, unlike that of Maryland, "was a confiscation, and not a tax.... Is it possible," he asked, "that ... the law of the whole may be defeated ...
by a single part?"[1075]
On March 19, 1824, Marshall delivered the opinion of the court. All well-organized governments, he begins, "must possess, within themselves, the means of expounding, as well as enforcing, their own laws." The makers of the Const.i.tution kept constantly in view this great political principle. The Judiciary Article "enables the judicial department to receive jurisdiction to the full extent of the const.i.tution, laws, and treaties of the United States.... That power is capable of acting only when the subject is submitted to it by a party who a.s.serts his rights in the form prescribed by law. It then becomes a case" over which the Const.i.tution gives jurisdiction to the National courts. "The suit of The Bank of the United States _v._ Osborn _et al._, is a case, and the question is, whether it arises under a law of the United States."[1076]
The fact that other questions are involved does not "withdraw a case"
from the jurisdiction of the National courts; otherwise, "almost every case, although involving the construction of a [National] law, would be withdrawn; and a clause in the const.i.tution, relating to a subject of vital importance to the government and expressed in the most comprehensive terms, would be construed to mean almost nothing."
It is true that the Const.i.tution specifies the cases in which the Supreme Court shall have original jurisdiction, but nowhere in the Const.i.tution is there any "prohibition" against Congress giving the inferior National courts original jurisdiction; such a restriction is not "insinuated." Congress, then, can give the National Circuit Courts "original jurisdiction, in any case to which the appellate jurisdiction [of the Supreme Court] extends."[1077]
At this particular period of our history this was, indeed, a tremendous expansion of the power of Congress and the National Judiciary. Marshall flatly declares that Congress can invest the inferior National courts with any jurisdiction whatsoever which the Const.i.tution does not prohibit. It marks another stage in the development of his Const.i.tutional principle that the National Government not only has all powers expressly granted, but also all powers not expressly prohibited.
For that is just what Marshall"s reasoning amounts to during these crucial years.
No matter, continues the Chief Justice, how many questions, other than that affecting the Const.i.tution or laws, are involved in a case; if any National question "forms an ingredient of the original cause," Congress can "give the circuit courts jurisdiction of that cause." The Ohio Bank case "is of this description." All the Bank"s powers, functions, and duties are conferred or imposed by its charter, and "that charter is a law of the United States.... Can a being, thus const.i.tuted, have a case which does not arise literally, as well as substantially, under the law?"[1078]
If the Bank brings suits on a contract, the very first, the "foundation"
question is, "has this legal ent.i.ty a right to sue?... This depends on a law of the United States"--a fact that can never be waived. "Whether it be in fact relied on or not, in the defense, it is still a part of the cause, and may be relied on."[1079] a.s.sume, as counsel for Ohio a.s.sert, that "the case arises on the contract"; still, "the validity of the contract depends on a law of the United States.... The case arises emphatically under the law. The act of Congress is its foundation....
The act itself is the first ingredient in the case; is its origin; is that from which every other part arises."[1080]
Marshall concedes that the State is directly interested in the suit and that, if the Bank could have done so, it ought to have made the State a party. "But this was not in the power of the bank," because the Eleventh Amendment exempts a State from being sued in such a case. So the "very difficult question" arises, "whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands."[1081]
Just what will be the result if the National courts have not this power?
"A denial of jurisdiction forbids all inquiry into the nature of the case," even of "cases perfectly clear in themselves; ... where the government is in the exercise of its best-established and most essential powers." If the National courts have no jurisdiction over the agents of a State, then those agents, under the "authority of a [State] law void in itself, because repugnant to the const.i.tution, may arrest the execution of any law in the United States"--this they may do without any to say them nay.[1082]
In this fashion Marshall leads up to the serious National problem of the hour--the disposition of some States, revealed by threats and sometimes carried into execution, to interfere with the officers of the National Government in the execution of the Nation"s laws. According to the Ohio-Virginia-Kentucky idea, those officers "can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue,[1083] the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties"; and not one of them can "avail himself of the preventive justice of the nation to protect him in the performance of his duties."[1084]
Addressing himself still more directly to those who were flouting the authority of the Nation and preaching resistance to it, Marshall uses stern language. What is the real meaning of the anti-National crusade; what the certain outcome of it? "Each member of the Union is capable, at its will, of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws, otherwise than by proceedings which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation."
Once more Marshall cites the case of a State "penalty on a revenue officer, for performing his duty," and in this way warns those who are demanding forcible obstruction of National law or authority, that they are striking at the Nation and that the tribunals of the Nation will shield the agents and officers of the Nation: "If the courts of the United States cannot rightfully protect the agents who execute every law authorized by the const.i.tution, from the direct action of state agents in the collecting of penalties, they cannot rightfully protect those who execute any law."[1085]
Here, in judicial language, was that rebuke of the spirit of Nullification which Andrew Jackson was soon to repeat in words that rang throughout the land and which still quicken the pulses of Americans.
What is the great question before the court in the case of Osborn _vs._ The Bank of the United States; what, indeed, the great question before the country in the controversy between recalcitrant States and the imperiled Nation? It is, says Marshall, "whether the const.i.tution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws."
Ohio a.s.serts that "no preventive proceedings whatever," no action even to stay the hand of a State agent from seizing property, no suit to recover it from that agent, can be maintained because it is brought "substantially against the State itself, in violation of the 11th amendment of the const.i.tution." Is this true? "Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the const.i.tution?"[1086] There are many cases in which a State may be vitally interested, as, for example, those involving grants of land by different States.
If the mere fact that the State is "interested" in, or affected by, a suit makes the State a party, "what rule has the const.i.tution given, by which this interest is to be measured?" No rule, of course! Is then the court to decide the _degree_ of "interest" necessary to make a State a party? Absurd! since the court would have to examine the "whole testimony of a cause, inquiring into, and deciding on, the extent of a State"s interest, without having a right to exercise any jurisdiction in the case."[1087]
At last he affirms that it may be "laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party _named in the record_." Therefore, the Eleventh Amendment is, "of necessity, limited to those suits in which a state is a party _on the record_."[1088] In the Ohio Bank case, it follows that, "the state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is, not one of jurisdiction, but whether" the officers and agents of Ohio are "only nominal parties" or whether "the court ought to make a decree" against them.[1089] The answer to this question depends on the const.i.tutionality of the Ohio tax law. Although that exact point was decided in M"Culloch _vs._ Maryland,[1090] "a revision of that opinion has been requested; and many considerations combine to induce a review of it."[1091]
Maryland and Ohio claim the right to tax the National Bank as an "individual concern ... having private trade and private profit for its great end and princ.i.p.al object." But this is not true; the Bank is a "public corporation, created for public and national purposes"; the fact that it transacts "private as well as public business" does not destroy its character as the "great instrument by which the fiscal operations of the government are effected."[1092] Obviously the Bank cannot live unless it can do a general business as authorized by its charter. This being so, the right to transact such business "is necessary to the legitimate operations of the government, and was const.i.tutionally and rightfully engrafted on the inst.i.tution." Indeed, the power of the Bank to engage in general banking is "the vital part of the corporation; it is its soul." As well say that, while the human body must not be touched, the "vivifying principle" which "animates" it may be destroyed, as to say that the Bank shall not be annihilated, but that the faculty by which it exists may be extinguished.
For a State, then, to tax the Bank"s "faculties, its trade and occupation, is to tax the Bank itself. To destroy or preserve the one, is to destroy or preserve the other."[1093] The mere fact that the National Government created this corporation does not relieve it from "state authority"; but the "operations" of the Bank "give its value to the currency in which all the transactions of the government are conducted." In short, the Bank"s business is "inseparably connected"
with the "transactions" of the Government. "Its corporate character is merely an incident, which enables it to transact that business more beneficially."[1094]
The Judiciary "has no will, in any case"--no option but to execute the law as it stands. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." They can exercise no "discretion," except that of "discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature."[1095] This pa.s.sage, so wholly unnecessary to the decision of the case or reasoning of the opinion, was inserted as an answer to the charges of judicial "arrogance" and "usurpation."
In conclusion, Marshall holds that the Ohio law taxing the National Bank"s branches is unconst.i.tutional and void; that the State is not a "party on the record"; that Osborn, Harper, Currie, and Sullivan are "incontestably liable for the full amount of the money taken out of the Bank"; that this money may be pursued, since it "remained a distinct deposit"--in fact, was "kept untouched, in a trunk, by itself, ... to await the event of the pending suit respecting it."[1096] The judgment of the lower court that the money must be restored to the Bank was right; but the judgment was wrong in charging interest against the State officers, since they "were restrained by the authority of the Circuit Court from using "the money, taken and held by them.[1097]
So everybody having an immediate personal and practical interest in that particular case was made happy, and only the State Rights theorists were discomfited. It was an exceedingly human situation, such as Marshall, the politician, managed to create in his disposition of those cases that called for his highest judicial statesmanship. No matter how acutely he irritated party leaders and forced upon them unwelcome issues, Marshall contrived to satisfy the persons immediately interested in most of the cases he decided.
The Chief Justice himself was a theorist--one of the greatest theorists America has produced; but he also had an intimate acquaintance with human nature, and this knowledge he rightly used, in the desperate conflicts waged by him, to leave his antagonists disarmed of those weapons with which they were wont to fight.
Seemingly Justice Johnson dissented; but, burning with anger at South Carolina"s defiance of his action in the negro sailor case, he strengthened Marshall"s opinion in his very "dissent." This is so conspicuously true that it may well be thought that Marshall inspired Johnson"s "disagreement" with his six brethren of the Supreme Court.
Whether the decision was "necessary or unnecessary originally," begins Johnson, "a _state of things has now grown up, in some of the states_, which renders all the protection necessary, that the general government can give to this bank."[1098] He makes a powerful and really stirring appeal for the Bank, but finally concludes, on technical grounds, that the Supreme Court has no jurisdiction.[1099]
Immediately the fight upon the Supreme Court was renewed in Congress. On May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the House and proposed that the Supreme Court should be forbidden by law to hold invalid any provision of a State const.i.tution or statute unless five out of the seven Justices concurred, each to give his opinion "separately and distinctly," if the court held against the State.[1100]
Kentucky, said Letcher, had been deprived of "equal rights and privileges." How? By "_construction_.... Yes, construction! Its mighty powers are irresistible; ... it creates new principles; ... it destroys laws long since established; and it is daily acquiring new strength."[1101] John Forsyth of Georgia proposed as a subst.i.tute to Letcher"s resolutions that, for the transaction of business, "a majority of the quorum" of the Supreme Court "shall be a majority of the whole court, including the Chief Justice." A long and animated debate[1102]
ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among others, took part.
David Trimble of Kentucky declared that "no nation ought to submit, to an umpire of minorities.[1103]... If less than three-fourths of the States cannot amend the Const.i.tution, less than three-fourths of the judges ought not to construe it"--for judicial constructions are "explanatory amendments" by which "the person and property of every citizen must stand or fall."[1104]
So strong had been the sentiment for placing some restraint on the National Judiciary that Webster, astute politician and most resourceful friend of the Supreme Court, immediately offered a resolution that, in any cause before the Supreme Court where the validity of a State law or Const.i.tution is drawn in question "on the ground of repugnancy to the Const.i.tution, treaties, or laws, of the United States, no judgment shall be p.r.o.nounced or rendered until a majority of all the justices ...
legally competent to sit, ... shall concur in the opinion."[1105]
But Marshall"s opinion in Gibbons _vs._ Ogden[1106] had now reached the whole country and, for the time being, changed popular hostility to the Supreme Court into public favor toward it. The a.s.sault in Congress died away and Webster allowed his soothing resolution to be forgotten. When the attack on the National Judiciary was again renewed, the language of its adversaries was almost apologetic.
FOOTNOTES:
[947] _Annals_, 16th Cong. 1st Sess. 107-08.
[948] _Ib._ 175.
[949] _Ib._ 275.
[950] _Ib._ 359.
[951] _Annals_, 16th Cong. 1st Sess. 1033.
[952] _Ib._ 209. The Justices of the Supreme Court followed the proceedings in Congress with the interest and accuracy of politicians.
(See, for example, Story"s comments on the Missouri controversy, Story to White, Feb. 27, 1820, Story, I, 362.)