If the Bank brings suits on a contract, the very first, the "foundation" question is, "has this legal entity 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] Assume, as counsel for Ohio assert, 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 constitution, 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 constitution, 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 constitution 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 asserts 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 constitution." Is this true? "Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution?"[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 constitution 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 constitutionality 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]