Ohio History Journal

NULLIFICATION IN OHIO.

TWELVE years before the famous resistance of South

Carolina to Federal authority, the State of Ohio, through

the solemn acts of her Legislature, attempted and suc-

ceeded for a time, to nullify the laws of the United States,

and to disobey the decisions of her courts. It was not

merely a legislative nullification, but it was a complete

destruction of Federal standing within the State. The

United States Courts and the United States Banks were

denied the immunities and obedience of the law. The

writs of the former were ignored, and protection to the

latter refused. Why and how it was done cannot fail to

interest the student of political affairs, for, in addition to

being interesting to the general reader, it is a piece of

buried and forgotten history. And it detracts nothing

from the great fame of the Buckeye State, now blushing

in the pride and brilliancy of her first Centennial, to revive

the memory of her early and only political sin. It is three

score years and ten since the rebellious fallacy of State

sovereignty manifested itself in Ohio, and whatever evil

impressions it left behind have been sufficiently expiated

and erased by a subsequent record of unsurpassed loyalty

and purest patriotism. The State that in 1820 supported

and practiced the principles of the resolutions of 1798, has

since loyally stood by the Federal Government in two wars,

furnished more than three hundred thousand men to sup-

press a rebellion urged to maintain the spirit of those res-

olutions; and has given to the nation and the world the

three greatest generals of that war.

The principles of Jefferson were injected into Ohio pol-

itics very early. While President, he had removed General

Arthur St. Clair from the Governorship of the Northwest

Territory, more on account of his pronounced Federalism

than for anything else. It is a well known historical fact

that the enemies of St. Clair were all enthusiastic followers

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414  Ohio Archaeological and Historical Quarterly.

of Jefferson, and reported to their chief every political

speech of the distinguished Governor. The Virginia set-

tlers and most of the Pennsylvanians who migrated num-

erously to the young State were anti-Federalists or Demo-

cratic-Republicans. The pioneers of Marietta and the

Western Reserve were Federalists in politics, but few in

numbers, and so powerful was the early Democracy, both

in numbers and influence, that Edward Tiffin, the first

Governor and Democrat of Ohio, was elected to that posi-

tion without opposition. Return Jonathan Meigs, Jr.,

writing of the Federalists from Marietta, after the election,

said, " Such was their obstinacy that (knowing they could

not carry a Federal Governor) they would not vote for

Governor at all, but threw in blank tickets."¹ This re-

fusal to participate in the election, when the prospects

were hopeless, was almost general throughout the State.

From these facts it can be seen that Ohio was a natural

soil for the sowing and development of the State Rights

Doctrine of the Jeffersonian Democracy. It was a thing to

be expected that a State politically constituted as Ohio

was in 1819, should display a bitter and partisan opposition

to the United States Bank, which, having been re-chartered

in 1816, proceeded to establish its branches in the various

States. In January, 1817, a branch was located at Cincin-

nati, and in October of the same year another was opened

at Chillicothe. Immediately the leaders of the Democ-

racy, with a recollection that Alexander Hamilton, the

prince of Federalists, had fathered the national bank,

commenced the fight that led to an open and avowed in-

dorsement of nullification, and which finally invoked the

machinery of Ohio law against the fiscal agent of the

United States Treasury. The political leaders were joined

by the beggarly and borrowing private banks of that day;

they were the "wild cat" banks of a later date in embryo.

They formed the moneyed aristocracy of the State, and

owned many a rotten borough, for in those days of bank

1 The St. Clair Papers. Wm. Henry Smith. Vol. 1, p. 247.

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Nullification in Ohio.         415

excitement they had a great deal to do with saying who

should go to the Legislature, as well as who should remain

at home. They railed at the bank with all the venom of

political opponents and the commercial rancor of business

rivals. Filled with the spirit of the silversmiths of Ephesus

against Paul, they cried that under the new financial

regime "our craft is in danger to be set at naught."

The war on the United States Bank commenced in 1817,

when, in December of that year, the Legislature appointed

a committee to inquire into the expediency of taxing any

branches of that Bank which might be established in the

State. It was the purpose to drive them out of Ohio with

the strong and resistless whip of taxation. Although this

committee reported against it, the Lower House reversed

the report, and at the next session, February 8, 1819, the

Legislature passed a law taxing the United States Bank,

prefacing it with a preamble declaring that the President

and Directors of the Bank of the United States have es-

tablished two offices of discount and deposit in this State,

at which they transact banking business, by loaning money

and issuing bills in violation of the laws of this State; it

was, therefore, provided that the Bank of the United

States shall pay a tax of fifty thousand dollars per annum

upon each office of discount and deposit at which they

commence or continue to transact banking business within

this State."¹ To the Auditor of State was committed the

duty of collecting this tax. He was given the power to

appoint a collector, who was conferred with extraordinary

powers for the purpose of collecting the tax. It was made

his duty " to go into each and any room, or vault of such

banking house, and every closet, chest, box or drawer in

such banking house to open and search." With this limit-

less right of search, he was authorized to take as much

money from the places mentioned as would pay the tax.

No such law was ever passed by any other State before or

since. It was called the " crow-bar law " from the weapon

1 Chase's Statutes of Ohio. VoL 2, p. 1072.

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41⁶  Ohio Archaeological and Historical Quarterty.

used in its execution. It was passed in response to un-

mistakable popular demands, partisan of course. Prior to

the date on which the law was to take effect, which was

fixed on the 1st of September, 1819, the banks filed a bill

in chancery before the Circuit Court of the United States

sitting at Chillicothe, against the Auditor of State, and

obtained in that Court an order of injunction prohibiting

him from collecting the tax. Briefly stated, the order of

the Court was disregarded, the injunction ignored, and, as

if no legal proceedings had been had, the collectors of the

Auditor broke into the bank at Chillicothe, forcibly en-

tered the vault, and carried off $100,000 in gold, silver and

notes. This was paid over to the State Treasurer, and by

him passed to the credit of the State as revenue from taxes.

This act caused the greatest excitement throughout the

State. It was an open defiance of the settled law of the

Union. Some time before this forcible levy upon the prop-

erty of the Bank, the very same question, as to the right

to tax a branch of the United States Bank, had been de-

termined by the highest tribunal of law in the country.

The officers of Ohio and the party leaders knew it, and

what they did was done in open contempt of the Supreme

Court, as the former act had been in contempt of the Cir-

cuit Court.

The case of McCullough vs. the State of Maryland1 was

an exact parallel to the Ohio situation. The Legislature

of Maryland, February 18, 1818, passed a law taxing the

branches of the United States Bank in that State. The

case, involving a constitutional question of vast import-

ance, was decided soon after, at the February term of the

Supreme Court, 1819. The whole ground was carefully

gone over by the Court, and an elaborate opinion delivered

by Chief Justice Marshall. Concerning the gravity of the

question involved, he said in the opening of his decision:

"In the case now to be determined, the defendant, a

sovereign State, denies the obligation of a law enacted by

1 See 4 Wheaton's Reports, p. 316.

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Nullification in Ohio.        417

the Legislature of the Union, and the plaintiff, on his par

contests the validity of an act which has been passed by

the Legislature of that State."

McCullough was the cashier of the United States Bank

Continuing, the Chief Justice said:

" The Constitution of our country, in its most interest-

ing and vital parts, is to be considered; the conflicting

powers of the government of the Union and its members,

as marked in that Constitution, are to be discussed; and an

opinion given which may essentially influence the great

operations of the government. No tribunal can approach

such a question without a deep sense of its importance,

and of the awful responsibility involved in its decision."

Proceeding then to a thorough and learned discussion

of the powers of the States and the Government, especially

in relation to the Bank, the Court solemnly declared:

" After the most deliberate consideration, it is the unan-

imous and decided opinion of this Court that the act to

incorporate the Bank of the United States is a law made

in pursuance of the Constitution, and is a part of the

supreme law of the land.

It was further decided that,

" The Bank of the United States has, constitutionally, a

right to establish its branches or offices of discount within

any State."

" The State, within which such branch may be estab-

lished, cannot, without violating the Constitution, tax that

branch.

"The State Governments have no right to tax any of

the constitutional means employed by the Government of

the Union to execute its constitutional powers.

" The States have no power, by taxation or otherwise,

to retard, impede, burthen or in any manner control the

operations of the constitutional means enacted by Congress

to carry into effect the powers vested in the National Gov-

ernment." 1

It was in the face and knowledge of this decision that

the Jeffersonian authorities collected their tax. It was

open and absolute nullification. Again did the Banks ap-

1 This principle, by the terms of the decision, did not apply to tax on the

real estate of the Bank, or the interest therein held by individuals.

 

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418  Ohio Archaeological and Historical Quarterly.

peal to the United States Courts, by securing the arrest

and imprisonment of the tax collectors who made the

seizure at Chillicothe. They further secured an order of

the Circuit Court sequestrating the money in the treasury

of Ohio until the final decision of the Court. Thwarted

in the courts, the nullifiers turned to the Legislature.

The report of the Auditor of State concerning the proceed-

ings which had occurred since the last session, was referred

to a joint committee of the House and Senate. On De-

cember 13, 1820, an elaborate report justifying the act of

the past year, and denouncing the decision of the Supreme

Court in the McCullough case was presented by the joint

committee.¹ It was called a "manufactured" case, a de-

cision obtained through a " maneuver of consummate pol-

icy." It recommended the ignoring of the decision al-

together. The committee quoted precedents to justify

their advice. With suggestive appropriateness the case of

President Jefferson withholding a commission from a jus-

tice of the peace of the District of Columbia in defiance

of the Supreme Court, was referred to. Said the commit-

tee in their report:

"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. Marbury. 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 re-

tained his standing 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.

1 See House Journal of XIXth (Ohio) General Assembly, p. 98.

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Nullification in Ohio.        419

"These two cases are evidence that in great questions

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 jus-

tified in withholding a commission, when the Court ad-

judged 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 purchasers from Georgia, surely

the State of Ohio ought not to be condemned because she

did not abandon her solemn legislative acts as a dead letter

upon the promulgation of an opinion of that tribunal."

With the same specious reasoning, adopted by the nul-

lifiers of later dates, the committee argued that the State

was sovereign, and the Union a compact with limited

powers. It announced the astounding doctrine, after-

wards reiterated by Buchanan's Attorney-General, that the

nation possessed no power of self-preservation. "A com-

bination between one-half of the States, comprising one-

third of the people only, possess the power of disorga-

nizing the Federal Government, in all its majesty of su-

premacy, without a single act of violence." The resolu-

tions of 1798 were quoted at great length, and their

principles heartily approved. Then came the remarkable

and disloyal recommendation of the committee. It was

nothing more nor less than to annul the decision of the

Supreme Court of the Union by declaring the Bank of

the United States an outlaw, and beyond the protection

of the laws of Ohio. Said the Committee:

" For this purpose, the committee recommend that pro-

vision 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 to them; prohibiting our judicial officers from

taking acknowledgements of conveyances, where the

Bank is a party, or when made for their use, and our

recorders from receiving or recording such conveyances;

forbidding our justices of the peace, judges, and grand

juries, from taking any cognizance of any wrong alleged

So have been committed upon any species of property,

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420  Ohio Archaeological and Historical Quarterly.

owned by the Banks, or upon any of its corporate rights or

privileges, and prohibiting our notaries public from pro-

testing any notes or bills, held by the Bank or their

agents, or made payable to them."

The committee concluded its report by recommending

the adoption of a series of resolutions, wherein it was de-

clared to be the sense of the Ohio Legislature that the

doctrines asserted by the Legislatures of Kentucky and

Virginia, in their resolutions of November and December,

1798, and January, 1800, were the true constructions of

the powers of the government. They further declared

and maintained, in spite of the decision of the Supreme

Court, the right of the State to tax the Bank of the

United States. This report was adopted, and in accord-

ance with its recommendation, the General Assembly

proceeded to its inimical legislation. On the 29th of

January, 1831, they passed "An Act to withdraw from the

Bank of the United States the protection of the laws of

this State in certain cases."² This law has no parallel

outside of the ordinance of nullification passed by South

Carolina in 1832, and the ordinances of secession of 1861.

This law, so extraordinary and alarming, and at the same

time so repugnant to every idea of common justice, in

effect outlawed that which Chief Justice Marshall called

one of the "constitutional means employed by the govern-

ment of the Union to execute its constitutional powers."

It was legislation against a bank constitutionally in exist-

ence, and whose charter was "a part of the supreme law

of the land." Trampling upon all these considerations,

the Ohio Democracy, through its 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

prevent 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

1 Journal of XIXth (Ohio) General Assembly, p. 117.

2 See Chase's Statutes of Ohio, Vol. II, p. 1185.

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Nullification in Ohio.           421

Ohio authority, to acknowledge or receive proof of

acknowledgement 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 nullifica-

tion. Under her laws the Federal Government was strip-

ped and bound, and driven beyond her borders. The pro-

tection that was given to an alien or a criminal was de-

nied to the National Government. The resolutions that

led to nullification in 1832, and secession in 1861, were

proudly announced in 1820 as Ohio's construction of con-

stitutional law. Well did Hamilton with prophetic vision

say, when he read them, " 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 resolutions." They held, as set forth

in the legislative report referred to, and as their subse-

quent acts showed, the doctrine advocated by Jefferson:

"that the Government created by this compact (referring

to the Constitution) 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

Constitution, the measurer of its powers; but that, as in

all cases of compact among powe s 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 re-

dress." The authorities of Ohio judged fo themselves

the limit of authority of the National Government, 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. Until the Supreme Court

again declared that a State had no right to tax, in the

final decision of the case originated in Ohio,¹ the iron law

of non-protection was applied to the Bank.

1 Osborn vs. The Bank of the United States. 9 Wheaton's Reports, 738.

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422  Ohio Archaeological and Historical Quarterly.

The legislative proceedings herein related, and the con-

duct of the State officers failed to attract the attention

throughout the country that they merited, for the reason

that at that time the nation was in the throes of the Mis-

souri Compromise agitation. But enough importance was

given to them to place in an unenviable light the great

State from whence they came. To have a northern State,

and that State anti-slavery Ohio, advocate the doctrine of

State sovereignty, when the country was racked over the

question of slavery, under threats of disunion from the

leaders of State sovereignty, was not indeed comforting

to constitutional unity. The cold verdict of history puts

the blame where it belongs. The Ohio of to-day need

not be ashamed to lay bare the record, neither need it de-

vote any time to apology. The nullification of 1820 was

the act of a political school that to-day is dead in that

great State.

DANIEL J. RYAN.

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