At this point Slavery and Secession enter upon the scene. Almost simultaneously with the introduction of the resolutions denouncing Marshall and the Supreme Court for the judgment and opinion in M'Culloch vs. Maryland, other resolutions were offered by a member of the House named Baldwin denouncing the imposition of restrictions on Missouri (the prohibition of slavery) as a condition of admitting that Territory to the Union. Such action by Congress would "excite feelings eminently hostile to the fraternal affection and prudent forbearance which ought ever to pervade the confederated union."[898] Two days later, December 30, the same delegate introduced resolutions to the effect that only the maintenance of the State Rights principle could "preserve the confederated union," since "no government can long exist which lies at the mercy of another"; and, inferentially, that Marshall's opinion in M'Culloch vs. Maryland had violated that principle.[899]
A yet sterner declaration on the Missouri question quickly followed, declaring that Congress had no power to prohibit slavery in that State, and that "Virginia will support the good people of Missouri in their just rights ... and will co-operate with them in resisting with manly fortitude any attempt which Congress may make to impose restraints or restrictions as the price of their admission" to the Union.[900] The next day these resolutions, strengthened by amendment, were adopted.[901] On February 12, 1820, the resolutions condemning the Nationalist doctrine expounded by the Chief Justice in the Bank case also came to a vote and passed, 117 ayes to 38 nays.[902] They had been amended and reamended,[903] but, as adopted, they were in substance the same as those originally offered by Stevenson. Through both these sets of resolutions—that on the Missouri question and that on the Bank decision—ran the intimation of forcible resistance to National authority. Introduced at practically the same time, drawn and advocated by the same men, passed by votes of the same members, these important declarations of the Virginia Legislature were meant to be and must be considered as a single expression of the views of Virginia upon National policy.
In this wise did the Legislature of his own State repudiate and defy that opinion of John Marshall which has done more for the American Nation than any single utterance of any other one man, excepting only the Farewell Address of Washington. In such manner, too, was the slavery question brought face to face with Marshall's lasting exposition of the National Constitution. For, it should be repeated, in announcing the principles by virtue of which Congress could establish the Bank of the United States, the Chief Justice had also asserted, by necessary inference, the power of the National Legislature to exact the exclusion of slavery as a condition upon which a State could be admitted to the Union. At least this was the interpretation of Virginia and the South.
The slavery question did not, to be sure, closely touch Northern States, but their local interests did. Thus it was that Ohio aligned herself with Virginia in opposition to Marshall's Nationalist statesmanship, and in support of the Jeffersonian doctrine of Localism. In such fashion did the Ohio Bank question become so intermingled with the conflict over Slavery and Secession that, in the consideration of Marshall's opinions at this time, these controversies cannot be separated. The facts of the Ohio Bank case must, therefore, be given at this point.[904]
Since the establishment at Cincinnati, early in 1817, of a branch of the Bank of the United States, Ohio had threatened to drive it from the State by a prohibitive tax. Not long before the argument of M'Culloch vs. Maryland in the Supreme Court, the Ohio Legislature laid an annual tax of $50,000 on each of the two branches which, by that time, had been established in that State.[905] On February 8, 1819, only four days previous to the hearing of the Maryland case at Washington, and less than a month before Marshall delivered his opinion, the Ohio lawmakers passed an act directing the State Auditor, Ralph Osborn, to charge this tax of $50,000 against each of the branches, and to issue a warrant for the immediate collection of $100,000, the total amount of the first year's tax.
This law is almost without parallel in severity, peremptoriness, and defiant contempt for National authority. If the branches refused to pay the tax, the Ohio law enjoined the person serving the State Auditor's warrant to seize all money or property belonging to the Bank, found on its premises or elsewhere. The agent of the Auditor was directed to open the vaults, search the offices, and take everything of value.[906]
Immediately the branch at Chillicothe obtained from the United States District Court, then in session at that place, an injunction forbidding Osborn from collecting the tax;[907] but the bank's counsel forgot to have a writ issued to stay the proceedings. Therefore, no order of the court was served; instead a copy of the bill praying that the Auditor be restrained, together with a subpœna to answer, was sent to Osborn. These papers were not, of course, an injunction, but merely notice that one had been applied for. Thinking to collect the tax before the injunction could be issued, Osborn forthwith issued his Auditor's warrant to one John L. Harper to collect the tax immediately. Assisted by a man named Thomas Orr, Harper entered the Chillicothe branch of the Bank of the United States, opened the vaults, seized all the money to be found, and deposited it for the night in the local State bank. Next morning Harper and Orr loaded the specie, bank notes, and other securities in a wagon and started for Columbus.[908]
The branch bank tardily obtained an order from the United States Court restraining Osborn, the State Auditor, and Harper, the State agent, from delivering the money to the State Treasurer and from making any report to the Legislature of the collection of the tax. This writ was served on Harper as he and Orr were on the road to the State Capital with the money. Harper simply ignored the writ, drove on to Columbus, and handed over to the State Treasurer the funds which he had seized at Chillicothe.
Harper and Orr were promptly arrested and imprisoned in the jail at Chillicothe.[909] Because of technical defects in serving the warrant for their arrest and in the return of the marshal, the prisoners were set free.[910] An order was secured from the United States Court directing Osborn and Harper to show cause why an attachment should not be issued against them for having disobeyed the court's injunction not to deliver the bank's money to the State Treasurer. After extended argument, the court issued the attachment, which, however, was not made returnable until the January term, 1821.
Meanwhile the Virginia Legislature passed 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]