It likewise ordains--

That all persons holding any office of honor, profit, or trust,

civil or military, under the State shall, within such time and in

such manner as the legislature shall prescribe, take an oath well

and truly to obey, execute, and enforce this ordinance and such act

or acts of the legislature as may be passed in pursuance thereof,

according to the true intent and meaning of the same; and on the

neglect or omission of any such person or persons so to do his or

their office or offices shall be forthwith vacated, and shall be

filled up as if such person or persons were dead or had resigned.

And no person hereafter elected to any office of honor, profit, or

trust, civil or military, shall, until the legislature shall

otherwise provide and direct, enter on the execution of his office

or be in any respect competent to discharge the duties thereof until

he shall in like manner have taken a similar oath; and no juror

shall be empaneled in any of the courts of the State in any cause in

which shall be in question this ordinance or any act of the

legislature passed in pursuance thereof, unless he shall first, in

addition to the usual oath, have taken an oath that he will well and

truly obey, execute, and enforce this ordinance and such act or acts

of the legislature as may be passed to carry the same into operation

and effect, according to the true intent and meaning thereof.

The ordinance concludes:

And we, the people of South Carolina, to the end that it may be

fully understood by the Government of the United States and the

people of the co-States that we are determined to maintain this

ordinance and declaration at every hazard, do further declare that

we will not submit to the application of force on the part of the

Federal Government to reduce this State to obedience, but that we

will consider the passage by Congress of any act authorizing the

employment of a military or naval force against the State of South

Carolina, her constituted authorities or citizens, or any act

abolishing or closing the ports of this State, or any of them, or

otherwise obstructing the free ingress and egress of vessels to and

from the said ports, or any other act on the part of the Federal

Government to coerce the State, shut up her ports, destroy or harass

her commerce, or to enforce the acts hereby declared to be null and

void, otherwise than through the civil tribunals of the country, as

inconsistent with the longer continuance of South Carolina in the

Union; and that the people of this State will thenceforth hold

themselves absolved from all further obligation to maintain or

preserve their political connection with the people of the other

States, and will forthwith proceed to organize a separate government

and to do all other acts and things which sovereign and independent

states may of right do.

This solemn denunciation of the laws and authority of the United States

has been followed up by a series of acts on the part of the authorities

of that State which manifest a determination to render inevitable a

resort to those measures of self-defense which the paramount duty of the

Federal Government requires, but upon the adoption of which that State

will proceed to execute the purpose it has avowed in this ordinance of

withdrawing from the Union.

On the 27th of November the legislature assembled at Columbia, and on

their meeting the governor laid before them the ordinance of the

convention. In his message on that occasion he acquaints them that "this

ordinance has thus become a part of the fundamental law of South

Carolina;" that "the die has been at last cast, and South Carolina has

at length appealed to her ulterior sovereignty as a member of this

Confederacy and has planted herself on her reserved rights. The rightful

exercise of this power is not a question which we shall any longer

argue. It is sufficient that she has willed it, and that the act is

done; nor is its strict compatibility with our constitutional obligation

to all laws passed by the General Government within the authorized

grants of power to be drawn in question when this interposition is

exerted in a case in which the compact has been palpably, deliberately,

and dangerously violated. That it brings up a conjuncture of deep and

momentous interest is neither to be concealed nor denied. This crisis

presents a class of duties which is referable to yourselves. You have

been commanded by the people in their highest sovereignty to take care

that within the limits of this State their will shall be obeyed." "The

measure of legislation," he says, "which you have to employ at this

crisis is the precise amount of such enactments as may be necessary to

render it utterly impossible to collect within our limits the duties

imposed by the protective tariffs thus nullified."

He proceeds:

That you should arm every citizen with a civil process by which he

may claim, if he pleases, a restitution of his goods seized under

the existing imposts on his giving security to abide the issue of a

suit at law, and at the same time define what shall constitute

treason against the State, and by a bill of pains and penalties

compel obedience and punish disobedience to your own laws, are

points too obvious to require any discussion. In one word, you must

survey the whole ground. You must look to and provide for all

possible contingencies. In your own limits your own courts of

judicature must not only be supreme, but you must look to the

ultimate issue of any conflict of jurisdiction and power between

them and the courts of the United States.

The governor also asks for power to grant clearances, in violation of

the laws of the Union; and to prepare for the alternative which must

happen unless the United States shall passively surrender their

authority, and the Executive, disregarding his oath, refrain from

executing the laws of the Union, he recommends a thorough revision of

the militia system, and that the governor "be authorized to accept for

the defense of Charleston and its dependencies the services of 2,000

volunteers, either by companies or files," and that they be formed into

a legionary brigade consisting of infantry, riflemen, cavalry, field and

heavy artillery, and that they be "armed and equipped from the public

arsenals completely for the field, and that appropriations be made for

supplying all deficiencies in our munitions of war." In addition to

these volunteer drafts, he recommends that the governor be authorized

"to accept the services of 10,000 volunteers from the other divisions of

the State, to be organized and arranged in regiments and brigades, the

officers to be selected by the commander in chief, and that this whole

force be called _the State guard_."

A request has been regularly made of the secretary of state of South

Carolina for authentic copies of the acts which have been passed for the

purpose of enforcing the ordinance, but up to the date of the latest

advices that request had not been complied with, and on the present

occasion, therefore, reference can only be made to those acts as

published in the newspapers of the State.

The acts to which it is deemed proper to invite the particular attention

of Congress are:

First. "An act to carry into effect, in part, an ordinance to nullify

certain acts of the Congress of the United States purporting to be laws

laying duties on the importation of foreign commodities," passed in

convention of this State, at Columbia, on the 24th November, 1832.

This act provides that any goods seized or detained under pretense of

securing the duties, or for the nonpayment of duties, or under any

process, order, or decree, or other pretext contrary to the intent and

meaning of the ordinance may be recovered by the owner or consignee by

"an act of replevin;" that in case of refusing to deliver them, or

removing them so that the replevin can not be executed, the sheriff may

seize the personal estate of the offender to double the amount of the

goods, and if any attempt shall be made to retake or seize them it is

the duty of the sheriff to recapture them; and that any person who shall

disobey the process or remove the goods, or anyone who shall attempt to

retake or seize the goods under pretense of securing the duties, or for

nonpayment of duties, or under any process or decree contrary to the

intent of the ordinance, shall be fined and imprisoned, besides being

liable for any other offense involved in the act.

It also provides that any person arrested or imprisoned on any judgment

or decree obtained in any Federal court for duties shall be entitled to

the benefit secured by the habeas corpus act of the State in cases of

unlawful arrest, and may maintain an action for damages, and that if any

estate shall be sold under such judgment or decree the sale shall be

held illegal. It also provides that any jailer who receives a person

committed on any process or other judicial proceedings to enforce the

payment of duties, and anyone who hires his house as a jail to receive

such persons, shall be fined and imprisoned. And, finally, it provides

that persons paying duties may recover them back with interest.

The next is called "An act to provide for the security and protection of

the people of the State of South Carolina."

This act provides that if the Government of the United States or any

officer thereof shall, by the employment of naval or military force,

attempt to coerce the State of South Carolina into submission to the

acts of Congress declared by the ordinance null and void, or to resist

the enforcement of the ordinance or of the laws passed in pursuance

thereof, or in case of any armed or forcible resistance thereto, the

governor is authorized to resist the same and to order into service the

whole or so much of the military force of the State as he may deem

necessary; and that in case of any overt act of coercion or intention to

commit the same, manifested by an unusual assemblage of naval or

military forces in or near the State, or the occurrence of any

circumstances indicating that armed force is about to be employed

against the State or in resistance to its laws, the governor is

authorized to accept the services of such volunteers and call into

service such portions of the militia as may be required to meet the

emergency.

The act also provides for accepting the service of the volunteers and

organizing the militia, embracing all free white males between the ages

of 16 and 60, and for the purchase of arms, ordnance, and ammunition. It

also declares that the power conferred on the governor shall be

applicable to all cases of insurrection or invasion, or imminent danger

thereof, and to cases where the laws of the State shall be opposed and

the execution thereof forcibly resisted by combinations too powerful to

be suppressed by the power vested in the sheriffs and other civil

officers, and declares it to be the duty of the governor in every such

case to call forth such portions of the militia and volunteers as may be

necessary promptly to suppress such combinations and cause the laws of

the State to be executed.

No. 9 is "An act concerning the oath required by the ordinance passed in

convention at Columbia on the 24th of November, 1832."

This act prescribes the form of the oath, which is, to obey and execute

the ordinance and all acts passed by the legislature in pursuance

thereof, and directs the time and manner of taking it by the officers of

the State--civil, judiciary, and military.

It is believed that other acts have been passed embracing provisions for

enforcing the ordinance, but I have not yet been able to procure them.

I transmit, however, a copy of Governor Hamilton's message to the

legislature of South Carolina; of Governor Hayne's inaugural address to

the same body, as also of his proclamation, and a general order of the

governor and commander in chief, dated the 20th of December, giving

public notice that the services of volunteers will be accepted under the

act already referred to.

If these measures can not be defeated and overcome by the power

conferred by the Constitution on the Federal Government, the

Constitution must be considered as incompetent to its own defense, the

supremacy of the laws is at an end, and the rights and liberties of the

citizens can no longer receive protection from the Government of the

Union. They not only abrogate the acts of Congress commonly called the

tariff acts of 1828 and 1832, but they prostrate and sweep away at once

and without exception every act and every part of every act imposing any

amount whatever of duty on any foreign merchandise, and virtually every

existing act which has ever been passed authorizing the collection of

the revenue, including the act of 1816, and also the collection law of

1799, the constitutionality of which has never been questioned. It is

not only those duties which are charged to have been imposed for the

protection of manufactures that are thereby repealed, but all others,

though laid for the purpose of revenue merely, and upon articles in no

degree suspected of being objects of protection. The whole revenue

system of the United States in South Carolina is obstructed and

overthrown, and the Government is absolutely prohibited from collecting

any part of the public revenue within the limits of that State.

Henceforth, not only the citizens of South Carolina and of the United

States, but the subjects of foreign states may import any description or

quantity of merchandise into the ports of South Carolina without the

payment of any duty whatsoever. That State is thus relieved from the

payment of any part of the public burthens, and duties and imposts are

not only rendered not uniform throughout the United States, but a direct

and ruinous preference is given to the ports of that State over those of

all the other States of the Union, in manifest violation of the positive

provisions of the Constitution.

In point of duration, also, those aggressions upon the authority of

Congress which by the ordinance are made part of the fundamental law of

South Carolina are absolute, indefinite, and without limitation. They

neither prescribe the period when they shall cease nor indicate any

conditions upon which those who have thus undertaken to arrest the

operation of the laws are to retrace their steps and rescind their

measures. They offer to the United States no alternative but

unconditional submission. If the scope of the ordinance is to be

received as the scale of concession, their demands can be satisfied only

by a repeal of the whole system of revenue laws and by abstaining from

the collection of any duties and imposts whatsoever.

It is true that in the address to the people of the United States by the

convention of South Carolina, after announcing "the fixed and final

determination of the State in relation to the protecting system," they

say "that it remains for us to submit a plan of taxation in which we

would be willing to acquiesce in a liberal spirit of concession,

provided we are met in due time and in a becoming spirit by the States

interested in manufactures." In the opinion of the convention, an

equitable plan would be that "the whole list of protected articles

should be imported free of all duty, and that the revenue derived from

import duties should be raised exclusively from the unprotected

articles, or that whenever a duty is imposed upon protected articles

imported an excise duty of the same rate shall be imposed upon all

similar articles manufactured in the United States."

The address proceeds to state, however, that "they are willing to make a

large offering to preserve the Union, and, with a distinct declaration

that it is a concession on our part, we will consent that the same rate

of duty may be imposed upon the protected articles that shall be imposed

upon the unprotected, provided that no more revenue be raised than is

necessary to meet the demands of the Government for constitutional

purposes, and provided also that a duty substantially uniform be imposed

upon all foreign imports."

It is also true that in his message to the legislature, when urging the

necessity of providing "means of securing their safety by ample

resources for repelling force by force," the governor of South Carolina

observes that he "can not but think that on a calm and dispassionate

review by Congress and the functionaries of the General Government of

the true merits of this controversy the arbitration by a call of a

convention of all the States, which we sincerely and anxiously seek and

desire, will be accorded to us."

From the diversity of terms indicated in these two important documents,

taken in connection with the progress of recent events in that quarter,

there is too much reason to apprehend, without in any manner doubting

the intentions of those public functionaries, that neither the terms

proposed in the address of the convention nor those alluded to in the

message of the governor would appease the excitement which has led to

the present excesses. It is obvious, however, that should the latter be

insisted on they present an alternative which the General Government of

itself can by no possibility grant, since by an express provision of the

Constitution Congress can call a convention for the purpose of proposing

amendments only "on the application of the legislatures of two-thirds of

the States." And it is not perceived that the terms presented in the

address are more practicable than those referred to in the message.

It will not escape attention that the conditions on which it is said in

the address of the convention they "would be willing to acquiesce" form

no part of the ordinance. While this ordinance bears all the solemnity

of a fundamental law, is to be authoritative upon all within the limits

of South Carolina, and is absolute and unconditional in its terms, the

address conveys only the sentiments of the convention, in no binding or

practical form; one is the act of the State, the other only the

expression of the opinions of the members of the convention. To limit

the effect of that solemn act by any terms or conditions whatever, they

should have been embodied in it, and made of import no less

authoritative than the act itself. By the positive enactments of the

ordinance the execution of the laws of the Union is absolutely

prohibited, and the address offers no other prospect of their being

again restored, even in the modified form proposed, than what depends

upon the improbable contingency that amid changing events and increasing

excitement the sentiments of the present members of the convention and

of their successors will remain the same.

It is to be regretted, however, that these conditions, even if they had

been offered in the same binding form, are so undefined, depend upon so

many contingencies, and are so directly opposed to the known opinions

and interests of the great body of the American people as to be almost

hopeless of attainment. The majority of the States and of the people

will certainly not consent that the protecting duties shall be wholly

abrogated, never to be reenacted at any future time or in any possible

contingency. As little practicable is it to provide that "the same rate

of duty shall be imposed upon the protected articles that shall be

imposed upon the unprotected," which, moreover, would be severely

oppressive to the poor, and in time of war would add greatly to its

rigors. And though there can be no objection to the principle, properly

understood, that no more revenue shall be raised than is necessary for

the constitutional purposes of the Government, which principle has been

already recommended by the Executive as the true basis of taxation, yet

it is very certain that South Carolina alone can not be permitted to

decide what these constitutional purposes are.

The period which constitutes the due time in which the terms proposed in

the address are to be accepted would seem to present scarcely less

difficulty than the terms themselves. Though the revenue laws are

already declared to be void in South Carolina, as well as the bonds

taken under them and the judicial proceedings for carrying them into

effect, yet as the full action and operation of the ordinance are to be

suspended until the 1st of February the interval may be assumed as the

time within which it is expected that the most complicated portion of

the national legislation, a system of long standing and affecting great

interests in the community, is to be rescinded and abolished. If this be

required, it is clear that a compliance is impossible.

In the uncertainty, then, that exists as to the duration of the

ordinance and of the enactments for enforcing it, it becomes imperiously

the duty of the Executive of the United States, acting with a proper

regard to all the great interests committed to his care, to treat those

acts as absolute and unlimited. They are so as far as his agency is

concerned. He can not either embrace or lead to the performance of the

conditions. He has already discharged the only part in his power by the

recommendation in his annual message. The rest is with Congress and the

people, and until they have acted his duty will require him to look to

the existing state of things and act under them according to his high

obligations.

By these various proceedings, therefore, the State of South Carolina has

forced the General Government, unavoidably, to decide the new and

dangerous alternative of permitting a State to obstruct the execution of

the laws within its limits or seeing it attempt to execute a threat of

withdrawing from the Union. That portion of the people at present

exercising the authority of the State solemnly assert their right to do

either and as solemnly announce their determination to do one or the

other.

In my opinion, both purposes are to be regarded as revolutionary in

their character and tendency, and subversive of the supremacy of the

laws and of the integrity of the Union. The result of each is the same,

since a State in which, by an usurpation of power, the constitutional

authority of the Federal Government is openly defied and set aside wants

only the form to be independent of the Union.

The right of the people of a single State to absolve themselves at will

and without the consent of the other States from their most solemn

obligations, and hazard the liberties and happiness of the millions

composing this Union, can not be acknowledged. Such authority is

believed to be utterly repugnant both to the principles upon which the

General Government is constituted and to the objects which it is

expressly formed to attain.

Against all acts which may be alleged to transcend the constitutional

power of the Government, or which may be inconvenient or oppressive in

their operation, the Constitution itself has prescribed the modes of

redress. It is the acknowledged attribute of free institutions that

under them the empire of reason and law is substituted for the power of

the sword. To no other source can appeals for supposed wrongs be made

consistently with the obligations of South Carolina; to no other can

such appeals be made with safety at any time; and to their decisions,

when constitutionally pronounced, it becomes the duty no less of the

public authorities than of the people in every case to yield a patriotic

submission.

That a State or any other great portion of the people, suffering under

long and intolerable oppression and having tried all constitutional

remedies without the hope of redress, may have a natural right, when

their happiness can be no otherwise secured, and when they can do so

without greater injury to others, to absolve themselves from their

obligations to the Government and appeal to the last resort, needs not

on the present occasion be denied.

The existence of this right, however, must depend upon the causes which

may justify its exercise. It is the _ultima ratio_, which presupposes

that the proper appeals to all other means of redress have been made in

good faith, and which can never be rightfully resorted to unless it be

unavoidable. It is not the right of the State, but of the individual,

and of all the individuals in the State. It is the right of mankind

generally to secure by all means in their power the blessings of liberty

and happiness; but when for these purposes any body of men have

voluntarily associated themselves under a particular form of government,

no portion of them can dissolve the association without acknowledging

the correlative right in the remainder to decide whether that

dissolution can be permitted consistently with the general happiness. In

this view it is a right dependent upon the power to enforce it. Such a

right, though it may be admitted to preexist and can not be wholly

surrendered, is necessarily subjected to limitations in all free

governments, and in compacts of all kinds freely and voluntarily entered

into, and in which the interest and welfare of the individual become

identified with those of the community of which he is a member. In

compacts between individuals, however deeply they may affect their

relations, these principles are acknowledged to create a sacred

obligation; and in compacts of civil government, involving the liberties

and happiness of millions of mankind, the obligation can not be less.

Without adverting to the particular theories to which the federal

compact has given rise, both as to its formation and the parties to it,

and without inquiring whether it be merely federal or social or

national, it is sufficient that it must be admitted to be a compact and

to possess the obligations incident to a compact; to be "a compact by

which power is created on the one hand and obedience exacted on the

other; a compact freely, voluntarily, and solemnly entered into by the

several States and ratified by the people thereof, respectively; a

compact by which the several States and the people thereof,

respectively, have bound themselves to each other and to the Federal

Government, and by which the Federal Government is bound to the several

States and to every citizen of the United States." To this compact, in

whatever mode it may have been done, the people of South Carolina have

freely and voluntarily given their assent, and to the whole and every

part of it they are, upon every principle of good faith, inviolably

bound. Under this obligation they are bound and should be required to

contribute their portion of the public expense, and to submit to all

laws made by the common consent, in pursuance of the Constitution, for

the common defense and general welfare, until they can be changed in the

mode which the compact has provided for the attainment of those great

ends of the Government and of the Union. Nothing less than causes which

would justify revolutionary remedy can absolve the people from this

obligation, and for nothing less can the Government permit it to be done

without violating its own obligations, by which, under the compact, it

is bound to the other States and to every citizen of the United States.

These deductions plainly flow from the nature of the federal compact,

which is one of limitations, not only upon the powers originally

possessed by the parties thereto, but also upon those conferred on the

Government and every department thereof. It will be freely conceded that

by the principles of our system all power is vested in the people, but

to be exercised in the mode and subject to the checks which the people

themselves have prescribed. These checks are undoubtedly only different

modifications of the same great popular principle which lies at the

foundation of the whole, but are not on that account to be less regarded

or less obligatory.

Upon the power of Congress, the veto of the Executive and the authority

of the judiciary, which is to extend to all cases in law and equity

arising under the Constitution and laws of the United States made in

pursuance thereof, are the obvious checks, and the sound action of

public opinion, with the ultimate power of amendment, are the salutary

and only limitation upon the powers of the whole.

However it may be alleged that a violation of the compact by the

measures of the Government can affect the obligations of the parties, it

can not even be pretended that such violation can be predicated of those

measures until all the constitutional remedies shall have been fully

tried. If the Federal Government exercise powers not warranted by the

Constitution, and immediately affecting individuals, it will scarcely be

denied that the proper remedy is a recourse to the judiciary. Such

undoubtedly is the remedy for those who deem the acts of Congress laying

duties and imposts, and providing for their collection, to be

unconstitutional. The whole operation of such laws is upon the

individuals importing the merchandise. A State is absolutely prohibited

from laying imposts or duties on imports or exports without the consent

of Congress, and can not become a party under these laws without

importing in her own name or wrongfully interposing her authority

against them. By thus interposing, however, she can not rightfully

obstruct the operation of the laws upon individuals. For their

disobedience to or violation of the laws the ordinary remedies through

the judicial tribunals would remain. And in a case where an individual

should be prosecuted for any offense against the laws, he could not set

up in justification of his act a law of the State, which, being

unconstitutional, would therefore be regarded as null and void. The law

of a State can not authorize the commission of a crime against the

United States or any other act which, according to the supreme law of

the Union, would be otherwise unlawful; and it is equally clear that if

there be any case in which a State, as such, is affected by the law

beyond the scope of judicial power, the remedy consists in appeals to

the people, either to effect a change in the representation or to

procure relief by an amendment of the Constitution. But the measures of

the Government are to be recognized as valid, and consequently supreme,

until these remedies shall have been effectually tried, and any attempt

to subvert those measures or to render the laws subordinate to State

authority, and afterwards to resort to constitutional redress, is worse

than evasive. It would not be a proper resistance to "_a government of

unlimited powers_," as has been sometimes pretended, but unlawful

opposition to the very limitations on which the harmonious action of the

Government and all its parts absolutely depends. South Carolina has

appealed to none of these remedies, but in effect has defied them all.

While threatening to separate from the Union if any attempt be made to

enforce the revenue laws otherwise than through the civil tribunals of

the country, she has not only not appealed in her own name to those

tribunals which the Constitution has provided for all cases in law or

equity arising under the Constitution and laws of the United States, but

has endeavored to frustrate their proper action on her citizens by

drawing the cognizance of cases under the revenue laws to her own

tribunals, specially prepared and fitted for the purpose of enforcing

the acts passed by the State to obstruct those laws, and both the judges

and jurors of which will be bound by the import of oaths previously

taken to treat the Constitution and laws of the United States in this

respect as a nullity. Nor has the State made the proper appeal to public

opinion and to the remedy of amendment; for without waiting to learn

whether the other States will consent to a convention, or if they do

will construe or amend the Constitution to suit her views, she has of

her own authority altered the import of that instrument and given

immediate effect to the change. In fine, she has set her own will and

authority above the laws, has made herself arbiter in her own cause, and

has passed at once over all intermediate steps to measures of avowed

resistance, which, unless they be submitted to, can be enforced only by

the sword.

In deciding upon the course which a high sense of duty to all the people

of the United States imposes upon the authorities of the Union in this

emergency, it can not be overlooked that there is no sufficient cause

for the acts of South Carolina, or for her thus placing in jeopardy the

happiness of so many millions of people. Misrule and oppression, to

warrant the disruption of the free institutions of the Union of these

States, should be great and lasting, defying all other remedy. For

causes of minor character the Government could not submit to such a

catastrophe without a violation of its most sacred obligations to the

other States of the Union who have submitted their destiny to its hands.

There is in the present instance no such cause, either in the degree of

misrule or oppression complained of or in the hopelessness of redress by

constitutional means. The long sanction they have received from the

proper authorities and from the people, not less than the unexampled

growth and increasing prosperity of so many millions of freemen, attest

that no such oppression as would justify, or even palliate, such a

resort can be justly imputed either to the present policy or past

measures of the Federal Government.

The same mode of collecting duties, and for the same general objects,

which began with the foundation of the Government, and which has

conducted the country through its subsequent steps to its present

enviable condition of happiness and renown, has not been changed.

Taxation and representation, the great principle of the American

Revolution, have continually gone hand in hand, and at all times and in

every instance no tax of any kind has been imposed without their

participation, and, in some instances which have been complained of,

with the express assent of a part of the representatives of South

Carolina in the councils of the Government. Up to the present period no

revenue has been raised beyond the necessary wants of the country and

the authorized expenditures of the Government; and as soon as the

burthen of the public debt is removed those charged with the

administration have promptly recommended a corresponding reduction of

revenue.

That this system thus pursued has resulted in no such oppression upon

South Carolina needs no other proof than the solemn and official

declaration of the late chief magistrate of that State in his address to

the legislature. In that he says that--

The occurrences of the past year, in connection with our domestic

concerns, are to be reviewed with a sentiment of fervent gratitude

to the Great Disposer of Human Events; that tributes of grateful

acknowledgment are due for the various and multiplied blessings He

has been pleased to bestow on our people; that abundant harvests in

every quarter of the State have crowned the exertions of

agricultural labor; that health almost beyond former precedent has

blessed our homes, and that there is not less reason for

thankfulness in surveying our social condition.

It would indeed be difficult to imagine oppression where in the social

condition of a people there was equal cause of thankfulness as for

abundant harvests and varied and multiplied blessings with which a kind

Providence had favored them.

Independently of these considerations, it will not escape observation

that South Carolina still claims to be a component part of the Union, to

participate in the national councils and to share in the public benefits

without contributing to the public burdens, thus asserting the dangerous

anomaly of continuing in an association without acknowledging any other

obligation to its laws than what depends upon her own will.

In this posture of affairs the duty of the Government seems to be plain.

It inculcates a recognition of that State as a member of the Union and

subject to its authority, a vindication of the just power of the

Constitution, the preservation of the integrity of the Union, and the

execution of the laws by all constitutional means.

The Constitution, which his oath of office obliges him to support,

declares that the Executive "_shall take care that the laws be

faithfully executed_" and in providing that he shall from time to time

give to Congress information of the state of the Union, and recommend to

their consideration such measures as he shall judge necessary and

expedient, imposes the additional obligation of recommending to Congress

such more efficient provision for executing the laws as may from time to

time be found requisite.

The same instrument confers on Congress the power not merely to lay and

collect taxes, duties, imposts, and excises, to pay the debts and

provide for the common defense and general welfare, but "to make all

laws which shall be necessary and proper for carrying into effect the

foregoing powers and all other powers vested by the Constitution in the

Government of the United States or in any department or officer

thereof," and also to provide for calling forth the militia for

executing the laws of the Union. In all cases similar to the present the

duties of the Government become the measure of its powers, and whenever

it fails to exercise a power necessary and proper to the discharge of

the duty prescribed by the Constitution it violates the public trusts

not less than it would in transcending its proper limits. To refrain,

therefore, from the high and solemn duties thus enjoined, however

painful the performance may be, and thereby tacitly permit the rightful

authority of the Government to be contemned and its laws obstructed by a

single State, would neither comport with its own safety nor the rights

of the great body of the American people.

It being thus shown to be the duty of the Executive to execute the laws

by all constitutional means, it remains to consider the extent of those

already at his disposal and what it may be proper further to provide.

In the instructions of the Secretary of the Treasury to the collectors

in South Carolina the provisions and regulations made by the act of

1799, and also the fines, penalties, and forfeitures for their

enforcement, are particularly detailed and explained. It may be well

apprehended, however, that these provisions may prove inadequate to meet

such an open, powerful, organized opposition as is to be commenced after

the 1st of February next.

Subsequently to the date of these instructions and to the passage of the

ordinance, information has been received from sources entitled to be

relied on that owing to the popular excitement in the State and the

effect of the ordinance declaring the execution of the revenue laws

unlawful a sufficient number of persons in whom confidence might be

placed could not be induced to accept the office of inspector to oppose

with any probability of success the force which will no doubt be used

when an attempt is made to remove vessels and their cargoes from the

custody of the officers of the customs, and, indeed, that it would be

impracticable for the collector, with the aid of any number of

inspectors whom he may be authorized to employ, to preserve the custody

against such an attempt.

The removal of the custom-house from Charleston to Castle Pinckney was

deemed a measure of necessary precaution, and though the authority to

give that direction is not questioned, it is nevertheless apparent that

a similar precaution can not be observed in regard to the ports of

Georgetown and Beaufort, each of which under the present laws remains a

port of entry and exposed to the obstructions meditated in that quarter.

In considering the best means of avoiding or of preventing the

apprehended obstruction to the collection of the revenue, and the

consequences which may ensue, it would appear to be proper and necessary

to enable the officers of the customs to preserve the custody of vessels

and their cargoes, which by the existing laws they are required to take,

until the duties to which they are liable shall be paid or secured. The

mode by which it is contemplated to deprive them of that custody is the

process of replevin and that of _capias in withernam_, in the nature of

a distress from the State tribunals organized by the ordinance.

Against the proceeding in the nature of a distress it is not perceived

that the collector can interpose any resistance whatever, and against

the process of replevin authorized by the law of the State he, having no

common-law power, can only oppose such inspectors as he is by statute

authorized and may find it practicable to employ, and these, from the

information already adverted to, are shown to be wholly inadequate,

The respect which that process deserves must therefore be considered.

If the authorities of South Carolina had not obstructed the legitimate

action of the courts of the United States, or if they had permitted the

State tribunals to administer the law according to their oath under the

Constitution and the regulations of the laws of the Union, the General

Government might have been content to look to them for maintaining the

custody and to encounter the other inconveniences arising out of the

recent proceedings. Even in that case, however, the process of replevin

from the courts of the State would be irregular and unauthorized. It has

been decided by the Supreme Court of the United States that the courts

of the United States have exclusive jurisdiction of all seizures made on

land or water for a breach of the laws of the United States, and any

intervention of a State authority which, by taking the thing seized out

of the hands of the United States officer, might obstruct the exercise

of this jurisdiction is unlawful; that in such case the court of the

United States having cognizance of the seizure may enforce a redelivery

of the thing by attachment or other summary process; that the question

under such a seizure whether a forfeiture has been actually incurred

belongs exclusively to the courts of the United States, and it depends

on the final decree whether the seizure is to be deemed rightful or

tortuous; and that not until the seizure be finally judged wrongful and

without probable cause by the courts of the United States can the party

proceed at common law for damages in the State courts.

But by making it "unlawful for any of the constituted authorities,

whether of the United States or of the State, to enforce the laws for

the payment of duties, and declaring that all judicial proceedings which

shall be hereafter had in affirmance of the contracts made with purpose

to secure the duties imposed by the said acts are and shall be held

utterly null and void," she has in effect abrogated the judicial

tribunals within her limits in this respect, has virtually denied the

United States access to the courts established by their own laws, and

declared it unlawful for the judges to discharge those duties which they

are sworn to perform. In lieu of these she has substituted those State

tribunals already adverted to, the judges whereof are not merely

forbidden to allow an appeal or permit a copy of their record, but are

previously sworn to disregard the laws of the Union and enforce those

only of South Carolina, and thus deprived of the function essential to

the judicial character of inquiring into the validity of the law and the

right of the matter, become merely ministerial instruments in aid of the

concerted obstruction of the laws of the Union.

Neither the process nor authority of these tribunals thus constituted

can be respected consistently with the supremacy of the laws or the

rights and security of the citizen. If they be submitted to, the

protection due from the Government to its officers and citizens is

withheld, and there is at once an end not only to the laws, but to the

Union itself.

Against such a force as the sheriff may, and which by the replevin law

of South Carolina it is his duty to exercise, it can not be expected

that a collector can retain his custody with the aid of the inspectors.

In such case, it is true, it would be competent to institute suits in

the United States courts against those engaged in the unlawful

proceeding, or the property might be seized for a violation of the

revenue laws, and, being libeled in the proper courts, an order might be

made for its redelivery, which would be committed to the marshal for

execution. But in that case the fourth section of the act, in broad and

unqualified terms, makes it the duty of the sheriff "to prevent such

recapture or seizure, or to redeliver the goods, as the case may be,"

"even under any process, order, or decrees, or other pretext contrary to

the true intent and meaning of the ordinance aforesaid." It is thus made

the duty of the sheriff to oppose the process of the courts of the

United States, and for that purpose, if need be, to employ the whole

power of the county. And the act expressly reserves to him all power

which, independently of its provisions, he could have used. In this

reservation it obviously contemplates a resort to other means than those

particularly mentioned.

It is not to be disguised that the power which it is thus enjoined upon

the sheriff to employ is nothing less than the _posse comitatus_ in all

the rigor of the ancient common law. This power, though it may be used

against unlawful resistance to judicial process, is in its character

forcible, and analogous to that conferred upon the marshals by the act

of 1795. It is, in fact, the embodying of the whole mass of the

population, under the command of a single individual, to accomplish by

their forcible aid what could not be effected peaceably and by the

ordinary means. It may properly be said to be a relic of those ages in

which the laws could be defended rather by physical than moral force,

and in its origin was conferred upon the sheriffs of England to enable

them to defend their county against any of the King's enemies when they

came into the land, as well as for the purpose of executing process. In

early and less civilized times it was intended to include "the aid and

attendance of all knights and others who were bound to have harness." It

includes the right of going with arms and military equipment, and

embraces larger classes and greater masses of population than can be

compelled by the laws of most of the States to perform militia duty. If

the principles of the common law are recognized in South Carolina (and

from this act it would seem they are), the power of summoning the _posse

comitatus_ will compel, under the penalty of fine and imprisonment,

every man over the age of 15, and able to travel, to turn out at the

call of the sheriff, and with such weapons as may be necessary; and it

may justify beating, and even killing, such as may resist. The use of

the _posse comitatus_ is therefore a direct application of force, and

can not be otherwise regarded than as the employment of the whole

militia force of the county, and in an equally efficient form under a

different name. No proceeding which resorts to this power to the extent

contemplated by the act can be properly denominated peaceable.

The act of South Carolina, however, does not rely altogether upon this

forcible remedy. For even attempting to resist or disobey, though by the

aid only of the ordinary officers of the customs, the process of

replevin, the collector and all concerned are subjected to a further

proceeding in the nature of a distress of their personal effects, and

are, moreover, made guilty of a misdemeanor, and liable to be punished

by a fine of not less than $1,000 nor more than $5,000 and to

imprisonment not exceeding two years and not less than six months; and

for even attempting to execute the order of the court for retaking the

property the marshal and all assisting would be guilty of a misdemeanor

and liable to a fine of not less than $3,000 nor more than $10,000 and

to imprisonment not exceeding two years nor less than one: and in case

the goods should be retaken under such process it is made the absolute

duty of the sheriff to retake them.

It is not to be supposed that in the face of these penalties, aided by

the powerful force of the county, which would doubtless be brought to

sustain the State officers, either that the collector would retain the

custody in the first instance or that the marshal could summon

sufficient aid to retake the property pursuant to the order or other

process of the court.

It is, moreover, obvious that in this conflict between the powers of the

officers of the United States and of the State (unless the latter be

passively submitted to) the destruction to which the property of the

officers of the customs would be exposed, the commission of actual

violence, and the loss of lives would be scarcely avoidable.

Under these circumstances and the provisions of the acts of South

Carolina the execution of the laws is rendered impracticable even

through the ordinary judicial tribunals of the United States. There

would certainly be fewer difficulties, and less opportunity of actual

collision between the officers of the United States and of the State,

and the collection of the revenue would be more effectually secured--if,

indeed, it can be done in any other way--by placing the custom-house

beyond the immediate power of the county.

For this purpose it might be proper to provide that whenever by any

unlawful combination or obstruction in any State or in any port it

should become impracticable faithfully to collect the duties, the

President of the United States should be authorized to alter and abolish

such of the districts and ports of entry as should be necessary, and to

establish the custom-house at some secure place within some port or

harbor of such State; and in such cases it should be the duty of the

collector to reside at such place, and to detain all vessels and cargoes

until the duties imposed by law should be properly secured or paid in

cash, deducting interest; that in such cases it should be unlawful to

take the vessel and cargo from the custody of the proper officer of the

customs unless by process from the ordinary judicial tribunals of the

United States, and that in case of an attempt otherwise to take the

property by a force too great to be overcome by the officers of the

customs it should be lawful to protect the possession of the officers by

the employment of the land and naval forces and militia, under

provisions similar to those authorized by the eleventh section of the

act of the 9th of January, 1809.

This provision, however, would not shield the officers and citizens of

the United States, acting under the laws, from suits and prosecutions in

the tribunals of the State which might thereafter be brought against

them, nor would it protect their property from the proceeding by

distress, and it may well be apprehended that it would be insufficient

to insure a proper respect to the process of the constitutional

tribunals in prosecutions for offenses against the United States and to

protect the authorities of the United States, whether judicial or

ministerial, in the performance of their duties. It would, moreover, be

inadequate to extend the protection due from the Government to that

portion of the people of South Carolina against outrage and oppression

of any kind who may manifest their attachment and yield obedience to the

laws of the Union.

It may therefore be desirable to revive, with some modifications better

adapted to the occasion, the sixth section of the act of the 3d March,

1815, which expired on the 4th March, 1817, by the limitation of that of

27th April, 1816, and to provide that in any case where suit shall be

brought against any individual in the courts of the State for any act

done under the laws of the United States he should be authorized to

remove the said cause by petition into the circuit court of the United

States without any copy of the record, and that the court should proceed

to hear and determine the same as if it had been originally instituted

therein; and that in all cases of injuries to the persons or property of

individuals for disobedience to the ordinance and laws of South Carolina

in pursuance thereof redress may be sought in the courts of the United

States. It may be expedient also, by modifying the resolution of the 3d

March, 1791, to authorize the marshals to make the necessary provision

for the safe-keeping of prisoners committed under the authority of the

United States.

Provisions less than these, consisting as they do for the most part

rather of a revival of the policy of former acts called for by the

existing emergency than of the introduction of any unusual or rigorous

enactments, would not cause the laws of the Union to be properly

respected or enforced. It is believed these would prove adequate unless

the military forces of the State of South Carolina authorized by the

late act of the legislature should be actually embodied and called out

in aid of their proceedings and of the provisions of the ordinance

generally. Even in that case, however, it is believed that no more will

be necessary than a few modifications of its terms to adapt the act of

1795 to the present emergency, as by that act the provisions of the law

of 1792 were accommodated to the crisis then existing, and by conferring

authority upon the President to give it operation during the session of

Congress, and without the ceremony of a proclamation, whenever it shall

be officially made known to him by the authority of any State, or by the

courts of the United States, that within the limits of such State the

laws of the United States will be openly opposed and their execution

obstructed by the actual employment of military force, or by any

unlawful means whatsoever too great to be otherwise overcome.

In closing this communication, I should do injustice to my own feelings

not to express my confident reliance upon the disposition of each

department of the Government to perform its duty and to cooperate in all

measures necessary in the present emergency.

The crisis undoubtedly invokes the fidelity of the patriot and the

sagacity of the statesman, not more in removing such portion of the

public burden as may be necessary than in preserving the good order of

society and in the maintenance of well-regulated liberty.

While a forbearing spirit may, and I trust will, be exercised toward the

errors of our brethren in a particular quarter, duty to the rest of the

Union demands that open and organized resistance to the laws should not

be executed with impunity.

The rich inheritance bequeathed by our fathers has devolved upon us the

sacred obligation of preserving it by the same virtues which conducted

them through the eventful scenes of the Revolution and ultimately

crowned their struggle with the noblest model of civil institutions.

They bequeathed to us a Government of laws and a Federal Union founded

upon the great principle of popular representation. After a successful

experiment of forty-four years, at a moment when the Government and the

Union are the objects of the hopes of the friends of civil liberty

throughout the world, and in the midst of public and individual

prosperity unexampled in history, we are called to decide whether these

laws possess any force and that Union the means of self-preservation.

The decision of this question by an enlightened and patriotic people can

not be doubtful. For myself, fellow-citizens, devoutly relying upon that

kind Providence which has hitherto watched over our destinies, and

actuated by a profound reverence for those institutions I have so much

cause to love, and for the American people, whose partiality honored me

with their highest trust, I have determined to spare no effort to

discharge the duty which in this conjuncture is devolved upon me. That a

similar spirit will actuate the representatives of the American people

is not to be questioned; and I fervently pray that the Great Ruler of

Nations may so guide your deliberations and our joint measures as that

they may prove salutary examples not only to the present but to future

times, and solemnly proclaim that the Constitution and the laws are

supreme and the _Union indissoluble_.

A Compilation of the Messages and Papers of the Presidents. Volume 2, part 3: Andrew Jackson, 1st term · 第 212 / 244 题