USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Three > Part 23
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The committee recommended the ignoring of the decision altogether. With suggestive appropriateness the case of President Jefferson withholding a commis- sion from a justice of the peace of the District of
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Columbia was referred to as a precedent justifying defiance of the Supreme Court. On this subject the committee in this report said:
"In the case of Marbury vs. Madison, the Supreme Court of the United States decided that William Marbury was entitled to his commission as justice of the peace for the District of Columbia; that the withholding of this commission by President Jefferson was violative of the legal vested right of Mr. Mar- bury. Notwithstanding this decision, Mr. Marbury never did obtain his commission; the person appointed in his place continued to act; his acts were admitted to be valid, and President Jefferson retained his stand- ing in the estimation of the American people. The decision of the Supreme Court proved to be totally impotent and unavailing.
"So in the case of Fletcher vs. Peck, the Supreme Court decided that the Yazoo purchasers from the State of Georgia were entitled to the lands. But the decision availed them nothing, unless as a make- weight in effecting a compromise.
"These two cases are evidence that in great ques- tions of political rights and political powers, a decision of the Supreme Court of the United States is not conclusive of the rights decided by it. If the United States stand justified in withholding a commission, when the Court adjudged it to be the party's right; if the United States might, without reprehension, retain possession of the Yazoo lands, after the Supreme Court decided that they were the property of the pur- chasers from Georgia, surely the State of Ohio ought not to be condemned because she did not abandon her
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solemn acts as a dead letter upon the promulgation. of an opinion of that tribunal."
With the same specious reasoning adopted by the nullifiers of later dates, the committee argued that the State was sovereign and the Union a compact. The astounding doctrine, afterwards reiterated by President Buchanan's Attorney General, that the nation possessed no power of self-preservation, was declared by the committee: "A combination between one-half of the States comprising one-third of the people only, possess the power of disorganizing the Federal Government, in all its majesty of supremacy, without a single act of violence."
The resolutions of 1798, declaring the doctrine of state sovereignty, were quoted at length, and their principles heartily approved. Then came the remark- able recommendation of the committee. It was noth- ing more nor less than to annul the decision of the Supreme Court in Mccullough vs. Maryland, by declaring the Bank of the United States an outlaw and beyond the protection of the laws of Ohio. The report reads:
"For this purpose, the committee recommend that provision be made by law forbidding the keepers of our jails from receiving into their custody, any person committed at the suit of the Bank of the United States, or for any injury done them; prohibiting our judicial officers from taking acknowledgments of con- veyances, where the Bank is a party, or when made for their use, and our recorders from receiving or record- ing such conveyances; forbidding our justices of the peace, judges and grand juries, from taking any cogni-
PERRY ORDERING THE FIRST FIRING AT THE BATTLE OF LAKE ERIE From a painting by John W. Jarvis.
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ДИТЯІ ТРЯІЯ АНТ ЈИІЯНАЯО УЯЯЯЯ
solemn acts HH HHAd CHO HITTAPART FR promulgarior of an opinion.afvistlw hdbtila ghinisq s moTH
With the same specious reasoning adopted by Llkc nullifiers of later dates, the committee argued that the State was sovereign and the Union a compact The astounding doctrine, afterwards reiterated by President Buchanan's Attorney General, that the nation possessed no power of self-preservation, wa declared by the committee: "A combination betwen one-half of the States comprising one-third of The people only, possess the power of disorganizing the Federal Government, in all its majesty of supremacy without a single act of violence."
The resolutions of 1798, declaring the doctrine of state sovereignty, were quoted at length, and boirt principles heartily approved. Then came the remark- able recommendation of the committee. It was ing more nor less than to annul the decision of the Supreme Court in Mccullough vs. Maryland, declaring the Bank of the United States an om law and beyond the protection of the laws of Ohio. The report reads:
"For this purpose, the committee recommend provision be made by law forbidding the keepers our jails from receiving into their custody, any perim committed at the suit of the Bank of the Uelos States, or for any injury done them; prohibiting out judicial officers from taking acknowledgments of veyances, where the Bank is a party, or when made their use, and our recorders from receiving or record- ing such conveyances; forbidding our justices of peace, judges and grand juries, from taking any cogne
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zance of any wrong alleged to have been committed upon any species of property, owned by the Bank, or upon any of its corporate rights or privileges, and prohibiting our notaries public from protesting any notes or bills, held by the Bank or its agents, or made payable to them."
The committee concluded its report by recommend- ing the adoption of resolutions declaring it to be the sense of the General Assembly "that in respect to the powers of the governments of the several states, that compose the American union, and the powers of the federal government, this general assembly do recognize, and approve the doctrines asserted by the legislatures of Kentucky and Virginia, in their resolu- tions of November and December, 1798, and January, 1800, and do consider that their principles have been recognized and adopted, by a majority of the American people."
They further declared the right to tax the Bank, and protested "against the doctrine, that the political rights of the several states that compose the American union, and their powers as sovereign states, may be settled and determined in the supreme court of the United States, so as to conclude and bind them, in cases contrived between individuals, and where they are no one of them, parties direct."
This report was adopted, and in accordance with its recommendations the General Assembly proceeded to its inimical legislation, On January 29, 1821, (Chase's Statutes, II, 1185) they passed "An act to withdraw from the Bank of the United States the protection of the laws of this State in certain cases."
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As a law it has no parallel outside of the act of nullifi- cation passed by South Carolina in 1832, and the ordinances of secession of 1861. This law, so extraor- dinary and alarming, and at the same time so repug- nant to every idea of common justice, in effect outlawed that which Chief Justice Marshall called one of the "constitutional means employed by the government of the Union to execute its constitutional powers." It was legislation against a Bank constitutionally in existence, and whose charter was "a part of the supreme law of the land."
Trampling upon all these considerations, the Ohic Legislature made it a criminal offense to protect the property of the Bank of the United States; it was contrary to the Ohio Statute to punish burglary, theft or arson upon national Bank property. It was declared illegal for any judge, justice of the peace, or any other judicial officer appointed under Ohio authority, to acknowledge or receive proof of acknowledgment of any deed or mortgage to which the Bank or any officer was a party. It was an offense for any recorder to record any such instrument. Notaries public were forbidden to protest United States Bank paper. Such was the climax in Ohio's fight of nullification. Under her laws the Federal Government was stripped and bound, and driven beyond her borders. The protec. tion that was given to an alien or a criminal was deniec to the Nation.
The resolutions of 1798, that led to nullification ir 1832, and secession in 1861, were proudly announced in 1820 as Ohio's construction of constitutional law When Alexander Hamilton read the Virginia and
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Kentucky resolutions he said: "This is the first symptom of a spirit which must be killed, or it will kill the Constitution of the United States." The nullifiers of Ohio carried out to the letter these resolu- tions. They held, as set forth in the legislative report referred to, and as their subsequent acts showed, the doctrine advocated by Jefferson: "that the Govern- ment created by this compact (referring to the Con- stitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion and not the Con- stitution, the measurer of its powers; but that, as in all cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infraction as of the mode and measure of redress." The authorities of Ohio judged for them- selves the limit of authority of the National Govern- ment, and chose the mode of redress. Their measures were more stringent, effective, and more completely nullified the supreme law of the land than did the measures of South Carolina twelve years after.
The State of Ohio by these proceedings had ex- hausted itself in its repudiation of Federal authority to do banking business within its limits. It now turned to the courts to seek what it failed to accomplish by legislation. When the Bank had successfully pre- vented the tax collected being used as State funds, the case was appealed to the Supreme Court of the United States. This case, reported in 9 Wheaton's Reports, 738, is entitled, "Osborn and others, Appel- lants vs. The President, Directors, and Company of the Bank of the United States, Respondents," and
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it is one of the most important decisions of its time. All parties concerned seem to have been fully impressed with its gravity. It amounted to an attempt to secure a reversal of the celebrated case of Mccullough vs. Maryland, and the appeal was in effect an application to reopen and reargue that case, for the circumstances were identical.
Henry Clay, Daniel Webster and John Sargent, together with the Attorney General, William Wirt, were the attorneys for the Bank, and Charles Hammond and John C. Wright represented the State of Ohio. Rarely has a case been in the hands of so distinguished counsel, and all indications pointed to a stubborn intellectual struggle. Charles Hammond was the ablest lawyer in the State at this time, and, indeed, he ranked with his opposing counsel in legal ability and power. He drafted, while in the legislature, all the reports against the Bank, and was the leader that aggressively massed the public sentiment of Ohio against it. In the public press, in the halls of legis- lation and in the courts, Hammond's opposition took persistent form. By speech, brief, and pamphlet he argued in favor of taxing the Bank.
While the case of Osborn was pending in the Supreme Court there was much agitation on the question whether the court would review McCullough vs. Maryland. The Ohio Legislature published an appeal to the people written by Charles Hammond. It was complimented by Jefferson and Madison, though cautiously and with reserve. The States of Con- necticut, New York, New Hampshire, Virginia and Georgia by their officials and legislatures expressed
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themselves on this subject. The latter two, having similar cases of their own, wanted to join Ohio in order to make the appeal more formidable. Governor Brown of Ohio was of the opinion that Hammond had made such a strong case that the Supreme Court would surely reverse the Maryland decision.
The hearing came in the February term, 1824. Hammond's argument was on the lines laid down in his legislative reports. It was more temperate and admirable than these, however, and more compre- hensive and logical. He alleged various grounds of error, but there were two important and far-reaching ones upon which he rested his case. The first of these propositions was, that the State of Ohio was the sole defendant and could not be sued in the Circuit Court; that it was a case of original jurisdiction in which the Supreme Court alone was authorized to act. In other words, the Bank had no right to an action or injunction in the court below for want of jurisdiction. His next proposition was that the Bank was not exempt from the taxing power of a State, and therefore the act of Ohio was valid and constitutional. On this point Hammond contended strongly that the Bank was engaged in private banking business in Ohio and therefore was subject to taxation by the State.
This latter question was, of course, the great issue involved. "The question whether the Bank of the United States," said Mr. Hammond, "as now consti- tuted, is exempt by the Constitution of the Union from the taxing power of the state, depends upon the nature and character of the institution. If it
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stands upon the same foundation with the mint and post office, if its business can justly be assimilated to the process and proceedings of the federal courts, I admit without hesitation that it is entitled to the exemption it claims. The state cannot tax the offices, establishments, and operations of the national govern- ment. It is not the argument of the opinion in Mccullough vs. Maryland, but the premises upon which that argument is founded, that I ask the court now to re-examine and re-consider. I ask what that opinion, as I conceive, does not contain-a full, distinct, and explicit exposition and definition of the true nature and character of the Bank."
There have been many cases of great importance involving national questions before the august judicial tribunal of our country, but possibly excepting the Dred Scott case, none involved a more serious question of national supremacy. The Supreme Court at this time was composed of John Marshall, Chief Justice, and Associate Justices Bushrod Washington, William Johnson, Thomas Todd, Gabriel Duvall, Joseph Story, and Smith Thompson. The opinion of the Court was delivered by the Chief Justice. As we read the decision to-day we see the great Virginian in the climax of his judicial power. In opportuneness and propriety of illustration, in strength and logic of reason and in crushing destruction of fallacious reason- ing, no other opinion of his excels this. With clearness, each of the arguments presented by Hammond was analyzed, and their fallacy laid bare under the con- struction of the Court.
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As to the contention that the Bank was engaged in private business, and was not a governmental function, the Chief Justice replied: "The appellants rely greatly on the distinction between the bank and the public institutions, such as the mint or the post office. The agents in those offices, are, it is said, officers of government, and are excluded from a seat in congress. Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractors.
"It will not be contended, that the directors, or other officers of the bank, are officers of government. But it is contended, that, were their resemblance to contractors more perfect than it is, the right of the state to control its operations, if those operations be necessary to its character, as a machine employed by the government, cannot be maintained. Can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed, or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative. It is true, that the property of the contractor may be taxed, as the property of other citizens; and so may the local property of the bank. But we do not admit that the act of purchasing, or of conveying the articles pur- chased, can be under state control.
"If the trade of the bank be essential to its character, as a machine for the fiscal operations of the govern- ment, that trade must be as exempt from state control as the actual conveyance of the public money. Indeed,
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a tax bears upon the whole machine; as well upon the faculty of collecting and transmitting the money of the nation, as on that of discounting the notes of individuals. No distinction is taken between them.
"Considering the capacity of carrying on the trade of banking, as an important feature in the character of this corporation, which was necessary, to make it a fit instrument for the objects for which it was created, the court adheres to its decision in the case of Mccullough against The State of Maryland, and is of opinion, that the act of the state of Ohio, which is certainly much more objectionable than that of the state of Maryland, is repugnant to a law of the United States, made in pursuance of the constitution, and, therefore void. The counsel for the appellants are too intelligent, and have too much self respect, to pretend, that a void act can afford any protection to the officers who execute it."
And thus the final blow was given to the legal rebellion in Ohio, and another of a series of decisions was given which served to strengthen our Nationality. And yet even after this, it took forty years of discussion, of nullification, of secession and of civil war to settle the American Government upon a stable foundation.
Charles Hammond was the full force back of this agitation. Notwithstanding his early Federalism, he surely was dragged far from his moorings when he penned the reports that advocated the Resolutions of 1798 as the proper definition of our Federal relations. It must be said, however, that in his after life he never approved the principles of his legislative reports. It would leave this chapter incomplete and the record
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of this event unfinished, to pass unnoticed the character and career of its chief actor.
Few of this generation realize that Charles Hammond was the most potential figure of his time in Ohio. There are some men of such superior mentality that the extrinsic aid of education and a college course seem unnecessary. Such a man was Charles Ham- mond. His mind was of a fundamental cast. Great truths came to him as guests and he entertained them as a host who more than welcomed them. He only wanted the basic principles of knowledge. He did not seek for its jewels or ornaments. The polish of scholarship, so necessary to those who are the rich fruit of studied accomplishments, would have appeared as tinsel on a character like Hammond's, and while he recognized its usefulness in others, he acquired by force of pioneer necessity, that education whose roughness indicated that it had been hewn by the blows of a broad ax.
One of his contemporaries, Governor Greene of Rhode Island, relates that in 1824, after the great Bank case had been argued, he took a trip down the Potomac with Chief Justice Marshall, who made many inquiries about Hammond. "He spoke," said Gover- nor Greene, "of his remarkable acuteness and accuracy of mind, and referred with emphatic admiration to his argument before the Supreme Court in the Bank case. He said that he met no judicial record of equal intellectual power since Lord Hardwicke's time." Gov- ernor Greene, who knew Hammond intimately for the last twenty years of his life, and who, himself, was a prominent lawyer, said of Hammond that
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"intellectually he was without a superior in our country." "In the legal action of his mind, " he said, "he was immensely self-reliant, and cared little for what is called authority, except as it agreed with his own views. In this respect, he belonged to the same class as the English Holt, Hardwicke and Mans- field, and the American Marshall, Parsons and Webster. These men got their law from their own minds, and not mainly from books that record the opinions of others; in other words, they made authority rather than followed it."
His printed legal arguments, if we are to believe the lawyers of his time, were the pride and delight of the Bar. Thomas Ewing, the elder, said of him that "Hammond spoke at the Bar as good English as Addison wrote in the Spectator." In 1826 Mr. Hammond removed to Cincinnati, and in addition to the practice of the law, he assumed the profession of journalism. He was the first editor of the Cincin- nati Gazette. Edward D. Mansfield, who lived there at the time, in his "Personal Memories," says of Hammond the editor: "I know of no writer who could express an idea so clearly and so briefly. He wrote the pure old English, the vernacular tongue, unmixed with French or Latin phrases or idioms, and unperverted with any scholastic logic. His lan- guage was like himself-plain, sensible and unaffected. His force, however, lay not so much in this, as in his truth, honesty and courage, these moral qualities which made him distinguished in that day, and would distinguish him now." Justice Noah H. Swayne of the United States Supreme Court, once said this
PERRY ON HIS WAY TO THE NIAGARA
From a painting by John W. Jarvis in the Hall of Records, New York.
This portrait was ordered by the Common Council of the City of New York shortly after Perry's famous victory. As it was taken from life it can be regarded as a faithful like- ness.
THE RISE AND PROGE
"intellecASADAInhaHMOT WWWhHtna vaggerior coun tab1033 16' IlsHI phenleivadl altidal vofdinismind,'' h "he was immensely self-reliant, and cared litt off to longo, nommoO adt yd borobro asw tisttog aidT his owil lutions as Hobisabriad nes petit mondelonged u same class as the English Holt, Hardwicke and field, and the American Marshall, Parsons and We These men got their law from their own mind not mainly from books that record the opinion others; in other words, they made authority r the followed it. "
Jily primad legal arguments, if we are to be the lawyer of Nie time, were the pride and de of the Bar. "Thomas Ewing, the elder, said of him "Hammond spoke at the Bar as good English Addison wrote in the Spectator." In 1826 Hammond removed to Cincinnati, and in add to the practice of the law, he assumed the profe of journalism. He was the first editor of the Cz nati Gazette. Edward D. Mansfield, who lived at the time, in his "Personal Memories," sa Hammond the editor: "I know of no writer could express an idea so clearly and so briefly. wrote the pure old English, the vernacular to unmixed with French or Latin phrases or id and umperverted with any scholastic logic. His guage was like himself-plain, sensible and unaffe Ille force, however, lay not so much in this, as in truth, honesty and courage, these moral quali which inade him distinguished in that day, and distinguish him now." Justice Noah H. Sw- of the United States Supreme Court, once said
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of him: "It was Mr. Hammond's habit to argue great questions of Constitutional law in the editorial columns of the Gazette. The depth, the fine discrimi- nation, the iron-linked logic of those disquisitions, were surpassed by nothing I heard from the first lawyers of the land while on the Supreme Bench."
In addition to his dualistic professional success, Hammond was long distinguished in public life. In 1813 he was elected from Belmont County to the Ohio Senate, serving in the Twelfth and Thirteenth General Assemblies. In 1816 he was elected to the Ohio House of Representatives, serving until 1822. He was the first Reporter of the Supreme Court, from 1823 to 1838, and during that time he edited the first nine volumes of the Ohio Reports. In the mean- time he was practicing law and writing editorials. He enjoyed throughout his life the friendship of such men as Jefferson, Adams, Clay, Crawford, Marshall, Webster, Jackson and Harrison. During the latter days of President John Quincy Adams' administration, he tendered to Mr. Hammond a seat on the Supreme Court, but it was declined. His brilliant career was ended April 3, 1840, at Cincinnati, where he died in his sixty-first year.
CHAPTER XI. THE ERA OF CANAL CONSTRUCTION AND ITS HEROIC FIGURE, ALFRED KELLEY
T HE year 1820 marks two striking facts in the civil history of Ohio. First, it was the climax of the most rapid increase in her population of any period. From 1800 to 1820 the population rose from 45,365 to 581,295, and from the eighteenth state in rank in the census she moved up to the fifth place. She had become greater in population than the state that sent her the pioneers to found Marietta. The only states in the Union that exceeded her were New York, Virginia, Pennsylvania and North Carolina; she had outstripped in the race of population every other one of the original thirteen. Thus had the young Giant of the West developed in strength.
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