Volume IV Part 35 (2/2)

Meanwhile the Virginia Legislature pa.s.sed its resolutions denouncing Marshall's opinion in M'Culloch _vs._ Maryland, and throughout the country the warfare upon the Supreme Court began. The Legislature of Ohio acted with a celerity and boldness that made the procedure of the Virginia Legislature seem hesitant and timid. A joint committee was speedily appointed and as promptly made its report. This report and the resolutions recommended by it were adopted without delay and transmitted to the Senate of the United States.[911]

The Ohio declaration is drawn with notable ability. A State cannot be sued--the true meaning of the Const.i.tution forbids, and the Eleventh Amendment specifically prohibits, such procedure.

Yet the action against Osborn, State Auditor, and Samuel Sullivan, State Treasurer, is, ”to every substantial purpose, a process against the State.” The decision of the National Supreme Court that the States have no power to tax branches of the Bank of the United States does not bind Ohio or render her tax law ”a dead letter.”[912]

The Ohio Legislature challenges the _bona fides_ of M'Culloch _vs._ Maryland: ”If, by the management of a party, and through the inadvertence or connivance of a State, a case be made, presenting to the Supreme Court of the United States for decision important ... questions of State power and State authority, upon no just principle ought the States to be concluded by any decision had upon such a case.... Such is the true character of the case pa.s.sed upon the world by the t.i.tle of McCulloch _vs._ Maryland,” which, ”when looked into, is found to be ...

throughout, an agreed case, made expressly for the purpose of obtaining the opinion of the Supreme Court of the United States.... This agreed case was manufactured in the summer of the year 1818” and rushed through two Maryland courts, ”so as to be got upon the docket of the Supreme Court of the United States for adjudication at their February term, 1819.... It is truly an alarming circ.u.mstance if it be in the power of an aspiring corporation and an unknown and obscure individual thus to elicit opinions compromitting the vital interests of the States that compose the American Union.”

Luckily for Ohio and all the States, this report goes on to say, some of Marshall's opinions have been ”totally impotent and unavailing,” as, for instance, in the case of Marbury _vs._ Madison. Marbury did not get his commission; ”the person appointed in his place continued to act; his acts were admitted to be valid; and President Jefferson retained his standing in the estimation of the American people.” It was the same in the case of Fletcher _vs._ Peck. Marshall held that ”the Yazoo purchasers ... were ent.i.tled to their lands. But the decision availed them nothing, unless as a make-weight in effecting a compromise.” Since, in neither of these cases, had the National Government paid the slightest attention to the decision of the Supreme Court, how could Ohio ”be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal”?[913]

The Ohio Legislature then proceeds to a.n.a.lyze Marshall's opinion in M'Culloch _vs._ Maryland. All the arguments made against the principle of implied powers since Hamilton first announced that principle,[914]

and all the reasons advanced against the doctrine that the National Government is supreme, in the sense employed by Marshall, are restated with clearness and power. However, since the object of the tax was to drive the branches of the Bank out of Ohio, the Legislature suggests a compromise. If the National inst.i.tution will cease business within the State and ”give a.s.surance” that the branches be withdrawn, the State will refund the tax money it has seized.[915]

Instantly turning from conciliation to defiance, ”because the reputation of the State has been a.s.sailed,” the Legislature challenges the National Government to make good Marshall's a.s.sertion that the power which created the Bank ”must have the power to preserve it.” Ohio should pa.s.s laws ”forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the Bank of the United States,” and prohibiting Ohio judges, recorders, notaries public, from recognizing that inst.i.tution in any way.[916] Congress will then have to provide a criminal code, a system of conveyances, and other extensive measures. Ohio and the country will then learn whether the power that created the Bank can preserve it.

The Ohio memorial concludes with a denial that the ”political rights”

and ”sovereign powers” of a State can be settled by the Supreme Court of the Nation ”in cases contrived between individuals, and where they [the States] are, no one of them, parties direct.” The resolutions further declare that the opinion of the other States should be secured.[917]

This alarming manifesto was presented to the National Senate on February 1, 1821, just six weeks before Marshall delivered the opinion of the Supreme Court in Cohens _vs._ Virginia.[918]

Pennsylvania had already taken stronger measures; had antic.i.p.ated even Virginia. Within seven weeks from the delivery of Marshall's opinion in M'Culloch _vs._ Maryland, the Legislature of Pennsylvania proposed an amendment to the National Const.i.tution prohibiting Congress from authorizing ”any bank or other monied inst.i.tution” outside of the District of Columbia.[919] The action of Ohio was an endors.e.m.e.nt of that of Virginia and Pennsylvania. Indiana had already swung into line.[920]

So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to become one of the most belligerent and persevering of all the States in her resistance to the ”encroachments” of Nationalism as expounded by the Supreme Court, withheld her hand for the moment.

Most unaccountably, South Carolina actually upheld Marshall's opinion,[922] which that State, within a decade, was to repudiate, denounce, and defy in terms of armed resistance.[923] New York and Ma.s.sachusetts,[924] consulting their immediate interests, were very stern against the Localism of Ohio, Virginia, and Pennsylvania.[925]

Georgia expressed her sympathy with the Localist movement, but, for the time being, was complaisant[926]--a fact the more astonis.h.i.+ng that she had already proved, and was soon to prove again, that Nationalism is a fantasy unless it is backed by force.[927]

Notwithstanding the eccentric att.i.tude of various members of the Union, it was only too plain that a powerful group of States were acting in concert and that others ardently sympathized with them.

At this point, in different fas.h.i.+on, Virginia spoke again, this time by the voice of that great protagonist of Localism, John Taylor of Caroline, the originator of the Kentucky Resolutions,[928] and the most brilliant mind in the Republican organization of the Old Dominion.

Immediately after Marshall's opinion in M'Culloch _vs._ Maryland, and while the Ohio conflict was in progress, he wrote a book in denunciation and refutation of Marshall's Nationalist principles. The editorial by Thomas Ritchie, commending Taylor's book, declares that ”the crisis has come”; the Missouri question, the Tariff question, the Bank question, have brought the country to the point where a decision must be made as to whether the National Government shall be permitted to go on with its usurpations. ”If there is any book capable of arousing the people, it is the one before us.”

Taylor gave to his volume the t.i.tle ”Construction Construed, and Const.i.tutions Vindicated.” The phrases ”exclusive interests” and ”exclusive privileges” abound throughout the volume. Sixteen chapters compose this cla.s.sic of State Rights philosophy. Five of them are devoted to Marshall's opinion in M'Culloch _vs._ Maryland; the others to theories of government, the state of the country, the protective tariff, and the Missouri question. The principles of the Revolution, avows Taylor, ”are the keys of construction” and ”the locks of liberty.[929]... No form of government can foster a fanaticism for wealth, without being corrupted.” Yet Marshall's ideas establish ”the despotick principle of a gratuitous distribution of wealth and poverty by law.”[930]

If the theory that Congress can create corporations should prevail, ”legislatures will become colleges for teaching the science of getting money by monopolies or favours.”[931] To pretend faith in Christianity, and yet foster monopoly, is ”like placing Christ on the car of Juggernaut.”[932] The framers of the National Const.i.tution tried to prevent the evils of monopoly and avarice by ”restricting the powers given to Congress” and safeguarding those of the States; ”in fact, by securing the freedom of property.”[933]

Marshall is enamored of the word ”sovereignty,” an ”equivocal and illimitable word,” not found in ”the declaration of independence, nor the federal const.i.tution, nor the const.i.tution of any single state”; all of them repudiated it ”as a traitor of civil rights.”[934] Well that they had so rejected this term of despotism! No wonder Jugurtha exclaimed, ”Rome was for sale,” when ”the government exercised an absolute power over the national property.” Of course it would ”find purchasers.”[935] To this condition Marshall's theories will bring America.

[Ill.u.s.tration: JOHN TAYLOR]

Whence this effort to endow the National Government with powers comparable to those of a monarchy? Plainly it is a reaction--”many wise and good men, ... alarmed by the illusions of Rousseau and G.o.dwin, and the atrocities of the French revolution, honestly believe that these [democratic] principles have teeth and claws, which it is expedient to draw and pare, however const.i.tutional they may be; without considering that such an operation will subject the generous lion to the wily fox; ... subject liberty and property to tyranny and fraud.”[936]

In chapter after chapter of clever arguments, illumined by the sparkle of such false gems as these quotations, Taylor prepares the public mind for his direct attack on John Marshall. He is at a sad disadvantage; he, ”an unknown writer,” can offer only ”an artless course of reasoning”

against the ”acute argument” of Marshall's opinion, concurred in by the members of the Supreme Court whose ”talents,” ”integrity,”

”uprightness,” and ”erudition” are universally admitted.[937] The essence of Marshall's doctrine is that, although the powers of the National Government are limited, the means by which they may be executed are unlimited. But, ”as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconst.i.tutional b.a.s.t.a.r.ds, which were not begotten by the people.”[938]

Marshall had said that ”'the creation of a corporation appertains to sovereignty.'” This is the language of tyranny. The corporate idea crept into British law ”wherein it hides the heart of a prost.i.tute under the habiliments of a virgin.”[939] But since, in America, only the people are ”sovereign,” and, to use Marshall's own words, the power to create corporations ”appertains to sovereignty,” it follows that neither State nor National Governments can create corporations.[940]

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