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_.