Volume IV Part 42 (1/2)
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 Was.h.i.+ngton, 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. Was.h.i.+ngton'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 s.h.i.+p Homer; and imprisoned under a South Carolina law which directed the arrest and confinement of any free negro on board any s.h.i.+p 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 clas.h.i.+ng 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 fas.h.i.+on 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 s.h.i.+elding 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 s.h.i.+eld 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.