Maryland and Ohio claim the right to tax the National Bank as an "individual concern ... having private trade and private profit for its great end and principal object." But this is not true; the Bank is a "public corporation, created for public and national purposes"; the fact that it transacts "private as well as public business" does not destroy its character as the "great instrument by which the fiscal operations of the government are effected."[1092] Obviously the Bank cannot live unless it can do a general business as authorized by its charter. This being so, the right to transact such business "is necessary to the legitimate operations of the government, and was constitutionally and rightfully engrafted on the institution." Indeed, the power of the Bank to engage in general banking is "the vital part of the corporation; it is its soul." As well say that, while the human body must not be touched, the "vivifying principle" which "animates" it may be destroyed, as to say that the Bank shall not be annihilated, but that the faculty by which it exists may be extinguished.
For a State, then, to tax the Bank's "faculties, its trade and occupation, is to tax the Bank itself. To destroy or preserve the one, is to destroy or preserve the other."[1093] The mere fact that the National Government created this corporation does not relieve it from "state authority"; but the "operations" of the Bank "give its value to the currency in which all the transactions of the government are conducted." In short, the Bank's business is "inseparably connected" with the "transactions" of the Government. "Its corporate character is merely an incident, which enables it to transact that business more beneficially."[1094]
The Judiciary "has no will, in any case"—no option but to execute the law as it stands. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." They can exercise no "discretion," except that of "discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature."[1095] This passage, so wholly unnecessary to the decision of the case or reasoning of the opinion, was inserted as an answer to the charges of judicial "arrogance" and "usurpation."
In conclusion, Marshall holds that the Ohio law taxing the National Bank's branches is unconstitutional and void; that the State is not a "party on the record"; that Osborn, Harper, Currie, and Sullivan are "incontestably liable for the full amount of the money taken out of the Bank"; that this money may be pursued, since it "remained a distinct deposit"—in fact, was "kept untouched, in a trunk, by itself, ... to await the event of the pending suit respecting it."[1096] The judgment of the lower court that the money must be restored to the Bank was right; but the judgment was wrong in charging interest against the State officers, since they "were restrained by the authority of the Circuit Court from using "the money, taken and held by them.[1097]
So everybody having an immediate personal and practical interest in that particular case was made happy, and only the State Rights theorists were discomfited. It was an exceedingly human situation, such as Marshall, the politician, managed to create in his disposition of those cases that called for his highest judicial statesmanship. No matter how acutely he irritated party leaders and forced upon them unwelcome issues, Marshall contrived to satisfy the persons immediately interested in most of the cases he decided.
The Chief Justice himself was a theorist—one of the greatest theorists America has produced; but he also had an intimate acquaintance with human nature, and this knowledge he rightly used, in the desperate conflicts waged by him, to leave his antagonists disarmed of those weapons with which they were wont to fight.
Seemingly Justice Johnson dissented; but, burning with anger at South Carolina's defiance of his action in the negro sailor case, he strengthened Marshall's opinion in his very "dissent." This is so conspicuously true that it may well be thought that Marshall inspired Johnson's "disagreement" with his six brethren of the Supreme Court. Whether the decision was "necessary or unnecessary originally," begins Johnson, "a state of things has now grown up, in some of the states, which renders all the protection necessary, that the general government can give to this bank."[1098] He makes a powerful and really stirring appeal for the Bank, but finally concludes, on technical grounds, that the Supreme Court has no jurisdiction.[1099]
Immediately the fight upon the Supreme Court was renewed in Congress. On May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the House and proposed that the Supreme Court should be forbidden by law to hold invalid any provision of a State constitution or statute unless five out of the seven Justices concurred, each to give his opinion "separately and distinctly," if the court held against the State.[1100] Kentucky, said Letcher, had been deprived of "equal rights and privileges." How? By "construction.... Yes, construction! Its mighty powers are irresistible; ... it creates new principles; ... it destroys laws long since established; and it is daily acquiring new strength."[1101] John Forsyth of Georgia proposed as a substitute to Letcher's resolutions that, for the transaction of business, "a majority of the quorum" of the Supreme Court "shall be a majority of the whole court, including the Chief Justice." A long and animated debate[1102] ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among others, took part.
David Trimble of Kentucky declared that "no nation ought to submit, to an umpire of minorities.[1103]... If less than three-fourths of the States cannot amend the Constitution, less than three-fourths of the judges ought not to construe it"—for judicial constructions are "explanatory amendments" by which "the person and property of every citizen must stand or fall."[1104]
So strong had been the sentiment for placing some restraint on the National Judiciary that Webster, astute politician and most resourceful friend of the Supreme Court, immediately offered a resolution that, in any cause before the Supreme Court where the validity of a State law or Constitution is drawn in question "on the ground of repugnancy to the Constitution, treaties, or laws, of the United States, no judgment shall be pronounced or rendered until a majority of all the justices ... legally competent to sit, ... shall concur in the opinion."[1105]