The Middle Period 1817-1858 Part 19

The convention declared and ordained in this instrument, that "the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially," the Act of May 19th, 1828, and that of July 14th, 1832, "are unauthorized by the Const.i.tution of the United States and violate the true meaning and intent thereof, and are null and void and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations made or entered into, or to be made or entered into, with purpose to secure the duties imposed by the said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void."

It further ordained that no appeal should be allowed from the decisions of the courts of the Commonwealth to the Supreme Court of the United States in questions involving the validity of the aforesaid Acts of Congress, or of the Ordinance of the convention annulling them, or of the acts of the legislature giving effect to the Ordinance, and that no copy of the proceedings in the courts of the Commonwealth should be allowed for any such purpose, but that the courts of the Commonwealth should proceed to execute their decisions upon such issues without regard to any attempts to appeal therefrom, and should deal with any person making such attempt as being guilty of contempt of court. It then commanded that all the officers of the Commonwealth, civil and military, and the jurors empanelled in the courts should take the {223} oath to obey, execute, and enforce the Ordinance, under penalty of dismissal and disqualification; and finally, it declared that South Carolina would regard her connection with the Union as absolved, in case Congress should pa.s.s any act authorizing the employment of military force to reduce her to obedience to the nullified acts, or any act abolis.h.i.+ng or closing the ports, or obstructing the free ingress and egress of vessels, or in case the United States should undertake to coerce the Commonwealth, or enforce the nullified acts otherwise than through the civil tribunals of the country.

For the execution of the provisions of the Ordinance the convention commanded the legislature to pa.s.s such measures as would prevent the enforcement of the nullified acts, and give full effect to the nullifying Ordinance, from and after February 1st, 1833, and commanded the obedience of all persons within the limits of the Commonwealth to the Ordinance and the legislative acts pa.s.sed for its execution.

[Sidenote: The Addresses issued by the Convention.]

With the Ordinance the convention issued two addresses, one to the people of South Carolina, and the other to the peoples of the other Commonwealths, naming each separately. The one to the people of South Carolina contained the theory of nullification, as elaborated by Calhoun, and the justification of its employment in the existing situation. It closed with an appeal to their love of liberty and a demand of obedience. The address to the peoples of the several Commonwealths contained an announcement of the pa.s.sage of the nullifying Ordinance, the theory upon which it was based, an a.s.sertion of the unconst.i.tutionality of the protective tariff, and its oppression upon the people of South Carolina, and a declaration of the spirit and feeling of the convention, and of the people it represented, toward the Union, the {224} Const.i.tution and the people of the manufacturing Commonwealths. The latter part of this address contained the only new point to be noticed. It was the offer of a plan for a compromise tariff which would satisfy the South Carolinians. The plan was the imposition of the same rate of duty upon all articles, those not coming into compet.i.tion with the products of the country and those coming into such compet.i.tion, and the raising of no more revenue than should be necessary to meet the demands of the Government for const.i.tutional purposes.

[Sidenote: The Ordinance communicated to the Legislature of South Carolina.]

In a message of November 27th, Governor Hamilton communicated to the legislature of the Commonwealth the Ordinance of Nullification and recommended the enactment of measures by that body for the execution of the Ordinance.

On December 13th, the new Governor, Colonel Hayne, who had resigned his seat in the Senate in order that Mr. Calhoun, who had himself resigned the vice-presidency, might be made South Carolina's representative in the Senate, or, as the South Carolinians now considered it, South Carolina's amba.s.sador to the Government of the United States, p.r.o.nounced his inaugural address before the legislature, dedicating himself to the service of the Commonwealth in the execution of her Ordinance of Nullification.

[Sidenote: The Acts of the Legislature for the execution of the Ordinance.]

The legislature immediately pa.s.sed the acts required by the convention and recommended by the Governor.

The first act, termed the Replevin Act, authorized any consignee of merchandise, or any person lawfully ent.i.tled to the possession of merchandise, held or detained for the payment of the duties imposed upon the same by the nullified Acts of Congress, to recover possession of the same, with {225} damages for its detention, by a writ of replevin, that is, by a summary procedure executed by an officer of the Commonwealth; and the Act authorized this officer, on initiation of the plaintiff in replevin, to seize the private property of the person detaining the merchandise to double the value of the latter, in case this person should refuse to deliver the detained merchandise to the sheriff, or should put it out of the sheriff's way, and to hold the property so seized until the merchandise in question should be produced and delivered to the sheriff.

This Act also authorized any person paying the nullified duties to recover the money paid, with interest on the same, by an action, in a court of the Commonwealth, for money had and received; and it authorized any person suffering arrest or imprisonment by order of any United States court, in execution of the nullified Acts, to demand the privilege of the writ of habeas corpus, and to maintain an action for unlawful arrest and imprisonment.

It declared the sale of any property seized by a United States court, in execution of the nullified Acts, to be illegal, and ordained that such sale should convey no t.i.tle to the purchaser. It forbade any officer of a court of the Commonwealth to furnish the record, or a copy of the record, or allow a copy of the record to be taken, of any case in which the validity of the nullified Acts or the nullifying Acts should be drawn in question, under penalty of both fine and imprisonment, and it forbade any person to attempt to recapture the goods delivered by the sheriff to the plaintiff in replevin, under threat of the same punishment.

It further forbade the keepers of the jails to receive and detain any person arrested or committed by virtue of any proceeding for enforcing the nullified Acts, under penalty of both fine and imprisonment; and it imposed {226} a similar penalty upon the offence of hiring, letting, or procuring any place to be used as a place of confinement for such person.

Finally, it forbade any person to disobey, obstruct, prevent, or resist any process allowed by this Act, under penalty of both fine and imprisonment; and it threatened every plaintiff, who should bring suit against any officer or person executing or aiding in the execution of the provisions of this Act, with adverse judgment and double costs.

The second Act of the legislature was a measure to provide for the event of the employment of military power by the general Government to enforce the nullified Acts in South Carolina. It authorized the Governor of the Commonwealth to resist the same; and for this purpose to order into service the whole military power of the Commonwealth at his discretion, to purchase arms, accoutrements, and ammunitions, and to appoint his military staff; and it authorized and obligated the Governor to use military power in suppressing opposition to the laws of the Commonwealth by combinations too powerful to be controlled by the civil officers.

The third Act was the test oath, the oath to obey, execute, and enforce the Ordinance of Nullification, and all the acts of the legislature for its enforcement, which every officer of the Commonwealth must take before dealing with any question touching the nullified Acts or the nullifying Acts, and which the Governor might require of any officer whatever.

These were the details and the forms of the issue which South Carolina now offered to the United States. Was it rebellion, or was it const.i.tutional and legal opposition?

[Sidenote: The meaning of Nullification as understood by the Nullifiers.]

As we have seen, Calhoun and the members of the {227} nullifying convention held it to be the latter. They argued that the reserved powers of the Commonwealths are recognized by the Const.i.tution; that every conceivable power is reserved to the Commonwealths, except such as are vested by the Const.i.tution in the general Government exclusively, or are denied by the Const.i.tution to the Commonwealths; that the power to p.r.o.nounce an act of the general Government null and void had been neither so vested nor so denied; that this was, therefore, a reserved power of the Commonwealths, and was, like all other reserved powers, a const.i.tutional power; that South Carolina proposed to use this power through judicial means only, which means were legally and const.i.tutionally at her disposal through the principle of the governmental system of the United States that general criminal jurisdiction belongs exclusively to the Commonwealths; and that the employment of military power by the Commonwealth, indicated in the Ordinance and the legislative acts for its enforcement, was to be resorted to only in self-defence, only to repel the possible attack of the military power of the general Government upon South Carolina.

It is entirely evident that the South Carolina statesmen and lawyers thought they had so fas.h.i.+oned the laws of the Commonwealth as to force the general Government to the first violation of legal order in attempting to execute the nullified Acts of Congress--that is, they thought they had made it impossible for the general Government to execute these Acts by regular legal methods; and that they had done so without themselves violating any rule or principle of American jurisprudence. They repeated the a.s.sertion, again and again, that they did not rest their case on moral, or on revolutionary, principles, but on strict const.i.tutional {228} right; and it is impossible to prove that they were insincere.

The great question now was, what att.i.tude the general Government would take toward the attempt of a Commonwealth to defeat the supremacy of its laws. Naturally the Executive Department must act first, since nullification was directed against the execution of existing laws.

[Sidenote: Jackson's view of Nullification.]

In his message of December 4th (1832), President Jackson referred briefly to the events of the preceding month in South Carolina, but did not seem to have fully appreciated their purport. He said he hoped the United States courts would be able to cope successfully with the difficulties in South Carolina, and that, if they were not, he thought that the existing laws gave the President sufficient power to suppress any attempts which might be immediately made against the supremacy of the Government.

[Sidenote: The Tariff in the Annual Message of 1832.]

He devoted a much larger portion of the message to a consideration of the tariff, and declared that the time had arrived for the United States to enter upon the realization of the policy of a tariff for revenue only, and of the ultimate limitation of protection to those articles of domestic manufacture indispensable to the country in time of war.

It is possible that the President did, after all, understand the serious nature of the situation from the outset, and hoped, by his p.r.o.nounced recommendations in regard to the tariff, and his very mild utterances concerning nullification, to influence the South Carolinians to a reconsideration of their hasty acts, and give them a loophole of escape from their very dubious and embarra.s.sing position.

[Sidenote: The President's Proclamation of December 10th.]

He waited for six days, and then issued the noted proclamation of December 10th, which presented the {229} President's idea of the relation of the United States, as a nation, and of the general Government, to the Commonwealths, a.s.serted the supremacy of United States law over Commonwealth law, demonstrated the true character of nullification as rebellion, and declared the President's intention to execute the laws of the United States against any and all opposition.

The President a.s.sumed as his cardinal principle that the Union preceded independence, and that by a joint act the people of the united colonies declared themselves a nation; that, as a nation, the people of the United States established the Const.i.tution of 1787, and placed in that instrument the provision that the Const.i.tution, and the laws and treaties made in accordance therewith, are "the supreme law"

of the land, and that "the judges in every State shall be bound thereby, anything in the const.i.tution or laws of any State to the contrary notwithstanding." From these principles the President derived the conclusions that no legal processes, which South Carolina could contrive, could prevent the execution of the laws of the United States in South Carolina; that to accomplish this South Carolina would be obliged to have recourse to violence; and that this necessity stamped nullification as rebellion.

The President stopped the loophole of escape from this reasoning, made by the claim of the nullifiers that the nullified Acts were not laws made in accordance with the Const.i.tution, by the declaration that the Judicial Department of the general Government was the body designated by the Const.i.tution to determine that question, and not a Commonwealth convention.

After warning the nullifiers to desist from their unlawful enterprise, the President closed his message with an eloquent appeal to the people of South Carolina to {230} withdraw from their unjustifiable and dangerous position, and an equally eloquent appeal to the people of the United States for aid and support in preserving the Union and maintaining the supremacy of the Government and the laws.

[Sidenote: The President's military preparations.]

Already before the pa.s.sage of the Ordinance of Nullification, the President had caused the United States military officers stationed in and about Charleston to be informed of their danger, had ordered two artillery companies from Fort Monroe to Fort Moultrie, had commanded General Scott to go to Charleston and do what might be necessary for a successful defence of the forts and places held by the Army of the United States, and had directed all the officers in command to defend their possession of these forts and places to the last extremity.

[Sidenote: The President's instructions to the customs officers in South Carolina.]

The President had also caused the collectors of the customs at Charleston, Georgetown, and Beaufort to be reminded of their powers under the laws of the United States, and had authorized them to make use of all the revenue cutters in the harbors, and of such other vessels as they could secure, and to call to their a.s.sistance the officers of the cutters, and to appoint a number of inspectors sufficient to execute successfully the laws of the United States for the collection of the duties. The collector at Charleston was specially authorized to remove the custom-house to Castle Pinckney, at his discretion; and the United States District Attorney at Charleston was ordered to aid the collector with counsel and advice.

After the pa.s.sage of the Ordinance, the President ordered five more companies of artillery from Fort Monroe to Fort Moultrie, commanded the removal of the custom-house from Charleston to Castle Pinckney, and sent General Scott to Charleston Harbor to take command, {231} on the spot, of all the forts and garrisons there, instructing him to avoid collision with the forces of the Commonwealth so long as possible, but, in case the exigency should arise requiring the exercise of military power, to act with firmness and decision, and to hold possession of the forts by all means and at every hazard.

[Sidenote: The popular approval of the President's course.]

The brave, loyal, and patriotic, yet wise and considerate, stand taken by the President was supported with great unanimity and enthusiasm throughout the North; and though the people of the Southern Commonwealths felt more sympathy with their South Carolina brethren, yet the dissent from the President's views and att.i.tude in that section was rare and feeble. The nation was with the President, and the President had done his duty n.o.bly and fearlessly.

[Sidenote: The Verplanck Tariff Bill.]

The turn now came upon Congress. Would Congress sustain the President, and give him all the means necessary to conquer nullification and secession in fact, and destroy them in principle? Unfortunately, so far as finite reason can judge, the first movements made in Congress were in the opposite direction. That part of the President's message which dealt with the question of the tariff was referred by the House of Representatives to its committee on Ways and Means, and on December 27th, 1832, the chairman of that committee, Mr. Verplanck, of New York, reported a bill from the committee which proposed to reduce and equalize duties largely, and in the direction of the South Carolina principle. If this bill should pa.s.s, the nullifiers could well a.s.sume that their Ordinance had accomplished its purpose without being applied, and could with triumphant dignity desist from the application of it; and they could defer with almost equal dignity the application of the Ordinance, {232} so long as there was any probability of the pa.s.sage of this bill.

[Sidenote: Governor Hayne's Counter-proclamation.]

Seven days before the introduction of this bill, Governor Hayne had issued a counter-proclamation to the President's proclamation of December 10th, in which he went over again the ground of nullification and secession, warned the citizens of South Carolina against the President's "pernicious" doctrines, and accused the President of indulging in unwarrantable imputations upon South Carolina. He gave notice, on the same day, that he would accept the service of volunteers. The legislature supported the Governor in defiant resolutions, which it sent to Congress, and caused to be read in that body.

[Sidenote: The President's Message of January 16th, 1833.]

The President was much ruffled by the arrogant language of the Governor and legislature, and when the Verplanck bill appeared, it must have looked to him too much like surrendering the entire field, which he was not now in any mood to do. He felt that something more must be done to vindicate the authority and the dignity of the Government. On January 16th, 1833, he sent another message to Congress, demonstrating and denouncing again the pernicious character of the nullification doctrine, informing Congress that he had removed the custom-house from Charleston to Castle Pinckney, and asking Congress for the power to change the customs districts and ports of entry, to exact the payment of duties in cash, and to use the land and naval forces when necessary for the execution of the revenue laws.

[Sidenote: Calhoun's explanations in the Senate.]

The message was referred by the Houses of Congress to their respective committees on the Judiciary; but immediately upon the reading of the message, and before the Senate had pa.s.sed the motion to refer, Mr.

Calhoun said, in that body, that there was no foundation whatever for the {233} statement in the message that the movements made by South Carolina were intended as hostile to the Union, or were so. He called the attention of the Senate to the fact that before the Ordinance of Nullification was pa.s.sed, before the convention had a.s.sembled, United States troops had been sent to Charleston Harbor; and he declared that, previous to this circ.u.mstance, South Carolina had looked to nothing beyond a civil process, and had intended to give effect to her opposition merely in the form of a suit at law, and that it was only when a military force had been displayed on her borders, and in her limits, and when a menace was thrown out against the lives of her citizens, that they found themselves driven to an att.i.tude of resistance.

[Sidenote: The "Force Bill."]

On the 21st of the month (January), Mr. Wilkins, the chairman of the Judiciary committee of the Senate, reported from his committee the bill for the collection of the revenue. This bill provided for extending the jurisdiction of the Circuit Courts of the United States over all cases in law or equity arising under the revenue laws of the United States; for making all property taken or detained by any officer or person under authority of any law of the United States irrepleviable by any order or process of the tribunals of a Commonwealth; for effecting the removal of suits commenced in a Commonwealth court against any officer or person for any act done under the laws of the United States, or on account of any right, authority, or t.i.tle claimed under those laws, to the Circuit Courts of the United States, by means of proof laid before the Circuit Court that the defendant had pet.i.tioned the Commonwealth court for the removal of the cause. The bill provided, further, for subst.i.tuting for a copy of the record of the proceedings in the {234} Commonwealth court, in case of the failure of that court to furnish a copy, an affidavit, or other evidence, as the circ.u.mstances of the case might require; for giving to the United States judges the power to grant writs of habeas corpus in all cases where persons were in confinement for acts done in pursuance of a law of the United States, or of an order, process, or decree of any United States court or judge; for empowering the United States marshals, under direction of the United States judges, to provide places of confinement for persons arrested or committed under the laws of the United States, where any Commonwealth should refuse the use of its jails for the confinement of such persons; for allowing the President to change the custom-house from one place in a collection district to another, and to require the duties to be paid in cash; and for empowering the President to use the land and naval forces for suppressing any resistance to the execution of the revenue laws too powerful to be overcome by the civil officers of the general Government.