Throughout South Carolina and other slaveholding States, the action of Justice Johnson inflamed the passions of the white population. "A high state of excitement exists," chronicles Niles.[1069] Marshall, of course, heard of the outcry against his associate and promptly wrote Story: "Our brother Johnson, I perceive, has hung himself on a democratic snag in a hedge composed entirely of thorny 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 constitution, it is better to break that instrument than submit to the principle.... Fuel is continually adding to the fire at which exaltées 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 passage 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 Constitution 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 Constitution kept constantly in view this great political principle. The Judiciary Article "enables the judicial department to receive jurisdiction to the full extent of the constitution, 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 asserts his rights in the form prescribed by law. It then becomes a case" over which the Constitution 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 constitution, 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 Constitution specifies the cases in which the Supreme Court shall have original jurisdiction, but nowhere in the Constitution 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 Constitution does not prohibit. It marks another stage in the development of his Constitutional 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 Constitution 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 constituted, have a case which does not arise literally, as well as substantially, under the law?"[1078]