NULLIFICATION
The Indian Question in Georgia--The Indian Springs Convention--The
Repudiation of the Agreement--The Controversy between the
Administration and Georgia--The Creek Convention of 1826--The Governor
of Georgia Repudiates the Convention of 1826--The President Submits
the Matter to Congress--Georgia and the Cherokees--Jackson and the
Indian Question--Indian Policy before Jackson--The Case of the
Cherokee Nation--The Case of Worcester against Georgia--The Failure of
the President to Execute the Decision in the Worcester Case--Jackson
and Calhoun--The Call of the Convention of 1832 in South Carolina--The
Nullification Ordinance--The Addresses Issued by the Convention--The
Acts of the Legislature of South Carolina for the Execution of the
Ordinance--The Meaning of Nullification as Understood by the
Nullifiers--Jackson's View of Nullification--The President's
Proclamation of December 10th--The President's Military
Preparations--The President's Instructions to the Customs Officers in
South Carolina--The Popular Approval of the President's Course--The
Verplanck Tariff Bill--Governor Hayne's Counter-Proclamation--The
President's Message of January 16th, 1833--Calhoun's Explanations in
the Senate--The "Force Bill"--The Postponement of the Execution of
Nullification--The Compromise Tariff--Mr. Calhoun's Support of Mr.
Clay's Bill--The Opposition to the Bill--Passage of the "Force Bill"
by the Senate--Passage of the Compromise Tariff Bill and the "Force
Bill" by Congress--The Nullification Ordinance Withdrawn.
[Sidenote: The Indian question in Georgia.]
Before nullification was resolved upon in South Carolina, something
like it had been applied in Georgia. {211} In the year 1802 Georgia
formally ceded the lands claimed by the Commonwealth west of the
Chattahoochee River to the United States for the sum of one million
two hundred and fifty thousand dollars, and upon the condition that
the United States Government would, at its own expense, extinguish the
Indian claims to any lands in Georgia so soon as this could be done
peacefully and upon reasonable terms.
Between 1802 and 1820 the Government made some advance in the
discharge of this obligation. By this latter date, however, designing
white men had joined with the Indian tribes located within the
Commonwealth, and were seeking to organize an Indian State for the
purposes of their own political ambition, and many well disposed white
persons were aiding them from humanitarian motives. The Georgians even
accused the Government of doing things that would contribute to the
same result. The Georgians were forced to face a very serious
question, the question of an Indian State, controlled chiefly by white
adventurers and sentimentalists, within the legal limits of the
Commonwealth.
Under this pressure the Georgians reviewed the whole question of
Indian organization, and rights to territory. They advanced the
propositions, that the Indian tribal organizations were not States and
could not, therefore, exercise dominion, and give title to real
property; that the Indians living within the legal limits of the
Commonwealth were subject to its jurisdiction in the same manner as
other persons, and to the same extent; that the original title to all
land within the limits of Georgia was in the Commonwealth, and every
valid title must be derived from the Commonwealth; that the claim of
the Indians to the lands on which the tribes lived was simply an
incumbrance upon Georgia's {212} title, an incumbrance which the
general Government was obligated to remove; and that, after the
Government should discharge this duty, Georgia's title would be
perfect, without any formal transfer of these lands to Georgia by the
Government.
[Sidenote: The demand of Georgia for the extinguishment of the Indian
claims.]
[Sidenote: The Indian Springs Convention.]
In 1819 the legislature of Georgia memorialized President Monroe to
hasten the work of the Government in extinguishing the Indian claims.
In the year 1824 the Creek chiefs in council resolved that not a foot
of the lands claimed by the Creeks should be relinquished.
Nevertheless, President Monroe's administration succeeded, in February
of 1825, in negotiating an agreement with certain of the Creek
chieftains according to which they relinquished to the United States
the Creek claims to all lands lying within the limits of Georgia, and
also to lands lying to the northwest and to the west of the
Commonwealth. This agreement was ratified by the Senate of the United
States in March of the same year.
[Sidenote: The repudiation of the agreement.]
The Governor of Georgia, Mr. Troup, immediately despatched the public
surveyors to lay out the relinquished territory. They were resisted by
the Indians, who declared their repudiation of the agreement of
February 12th with the general Government.
At the same moment a number of the chiefs were representing to the new
President, Mr. Adams, that that agreement was a fraud upon the
Indians, and that the chiefs who signed were not properly authorized
to do so. The agent of the Government to the Creeks supported their
protest, despite the fact that he was present at the execution of the
agreement. Under these circumstances the Secretary of War, Mr. James
Barbour, wrote to Governor Troup that the President {213} expected him
to abandon the survey until it could be made in accordance with the
provisions of the agreement which allowed the Indians until September
1st, 1826, for their removal, and guaranteed them against all
encroachments before that date.
[Sidenote: The Controversy between the Administration and Georgia.]
The communication from Secretary Barbour gave rise to a spirited
controversy between the Governor of Georgia and himself, in which the
Governor assumed an extreme "States' rights" attitude in defence of
his position. He claimed that Georgia's jurisdiction over, and title
to, the lands formally relinquished by the Creeks to the United States
were not originated by this act, but were only relieved by it of an
incumbrance, and that, therefore, no additional act was necessary on
the part of the Government to authorize Georgia to take possession and
exercise jurisdiction. He declared that he would not postpone the
survey, and advised the legislature of the Commonwealth to defend
Georgia's rights by armed resistance, which recommendation the
legislature seemed about to approve.
The President sent General Gaines to the scene of action, and
authorized him to place the militia of the Commonwealths adjoining
Georgia in readiness for service. The Governor was highly excited by
the approach of the military power of the United States, and wrote to
Secretary Barbour virtually accusing the Government of inciting the
Indians to violence against Georgia and her people, and demanding to
be informed of the purposes of the Administration. Mr. Barbour replied
that the President had decided that the survey should not proceed, and
had sent General Gaines with orders to prevent it, with military power
if necessary. The Governor now turned to the President himself, with
both protest and threat, but the President remained {214} firm, and
the Governor was obliged to yield for the moment.
[Sidenote: The Creek Convention of 1826.]
The Administration was apparently convinced that the agreement of 1825
was not fairly obtained, and, in January of 1826, entered into another
agreement with the Creeks, which, while recognizing the nullity of the
agreement of 1825, secured the extinguishment of their claims to all
lands in Georgia lying east of the Chattahoochee, and to a
considerable tract north and west of this river. The Administration
asserted that all the Creek lands lying within the limits of Georgia
were secured. Senator Berrien of Georgia, who represented the
interests of his Commonwealth when the agreement came before the
Senate for ratification, said, on the contrary, that it failed by a
million of acres of having done so.
[Sidenote: The Governor of Georgia repudiates the Convention of 1826.]
Governor Troup declared that the general Government could not by an
agreement with the Creeks rob Georgia of vested rights, which had
been, once for all, perfected by the agreement of 1825. He ordered the
public surveyors to include in their surveys the lands claimed by
Georgia west of the line designated in the agreement of 1826. The
Indians resisted them, and appealed to the President to protect their
rights as recognized by the latter agreement. The President ordered
the United States District Attorney and Marshal for Georgia to arrest
any one caught in the act of surveying the lands west of the line
fixed by the agreement of 1826. The Governor was informed of this
order, and was given to understand that the President would uphold the
agreement of 1826 by any and all power necessary. The Governor,
however, defied the Administration, ordered the law officers of the
Commonwealth to effect, by any means necessary, the release of the
arrested surveyors, and to {215} secure the arrest and trial of those
persons who had taken or held them in custody, ordered the commanders
of the militia of the Commonwealth to hold their forces in readiness
to resist the threatened invasion by the military power of the United
States, and sent a message to the legislature informing that body of
what he had done in the premises. In this message he took the ground
that questions of jurisdiction--he called them questions of
sovereignty--between the general Government and the Commonwealths
could not be determined by the judicial power of that Government, but
must be settled by agreement between the two parties.
[Sidenote: The President submits the matter to Congress.]
President Adams was deeply impressed with the seriousness of the
situation. He felt that he must uphold the dignity and authority of
the Government at all hazards and by all the means intrusted to him by
the Constitution and the laws; and yet he was unwilling to provoke
civil war, if it could be avoided, or to enter upon the work of
coercion without the practically unanimous support of the country. He
resolved, therefore, to lay the matter before Congress, and await its
action. Congress did practically nothing, and the President was
convinced that the nation was not prepared to have the Indian problem
fought out under the issue of "States' rights" versus the Union.
[Sidenote: Georgia and the Cherokees.]
Encouraged by this success the Georgians now resolved to subject the
Cherokees living within the limits of the Commonwealth to the laws
thereof or force them to emigrate. In December of 1827, the
legislature passed a law extending the criminal jurisdiction of the
Commonwealth over a part of the lands occupied by the Cherokees. The
Indians appealed to the President. The appeal came before the
President during the last month of his official term, and he {216}
discreetly and courteously resolved not to embarrass the new
Administration by committing the Government to any position in the
question.
[Sidenote: Jackson and the Indian question.]
President Jackson was even less inclined than his predecessor to allow
the Indian question to resolve itself into the question of the
constitutional spheres of authority between the Union and the
Commonwealths. Moreover, he believed that Georgia was in the right in
the Indian question. He replied to the Cherokee memorial that he knew
of no alternative to submission to the jurisdiction of Georgia except
emigration beyond the limits of the Commonwealth. His view was that
the general Government could not hinder a Commonwealth from exercising
jurisdiction over every person within its limits, except in such cases
as were reserved from that jurisdiction by the Constitution of the
United States, and could not lend its countenance to the creation of a
new political organization within these limits against the will of the
Commonwealth. This was the latter part of April, 1829. The Cherokees,
influenced largely by the whites among them, resented the President's
advice, and the council of chiefs resolved that no lands claimed by
the Cherokees should be relinquished, except by consent of the tribe
or tribes, under penalty of death for violation of their resolve, and
rejected the overtures of the Government for the relinquishment of
their claims.
In his message of December 8th, 1829, President Jackson devoted much
space to the Indian problem in general, and to it, as it affected
Georgia and Alabama, in particular. He repeated to Congress the views
which he had expressed to the Cherokees themselves, which were, as we
have seen, that the general Government could not lend its countenance
to the creation of an {217} Indian State within the confines of any
Commonwealth of the Union against the will of that Commonwealth, and
that the only alternative to subjection to the laws of the
Commonwealth on the part of the Indians was emigration beyond the
limits of the same. He also suggested the setting apart of a district
in the far West for the permanent home of such Indian tribes as should
prefer to continue in tribal organization, independent of the
jurisdiction of any Commonwealth of the Union, where they might work
out their own customs unmolested.
This was the democratic, "States' rights" view of the subject. It
denied all exemptions from the supremacy of the laws, and it also
denied to the general Government any power to restrain a Commonwealth
from the assertion of its jurisdiction over all persons within its
legal limits, except in cases specially reserved by the Constitution.
[Sidenote: Indian policy before Jackson.]
The Administration of Mr. Adams, and the Administrations of all of his
predecessors, had apparently inclined to the view that the Indian
tribes were already states, having dominion over, and property in, the
territory of the continent when the Europeans arrived upon it; that
the titles of the European states to it were only valid as against
each other, and meant, in relation to the aborigines, only a right of
pre-emption; and that after the Constitution was established no
government except the general Government of the United States could
have anything to do with them.
This was a crude and an impracticable view of the relation. It
contained more of sentiment and humanitarianism than of common sense
and inductive wisdom. The theory broke down completely in the Georgia
case, and could not be re-enlivened for practical purposes {218} even
by judicial decisions. The necessities of civilization have forced the
country to follow the course outlined by President Jackson, and that
is certainly good evidence of its correctness.
The Georgians must have been encouraged by his message, for the
legislature of Georgia immediately passed an act connecting the
Cherokee lands with the counties which they adjoined, and imposing the
full jurisdiction of the Commonwealth upon all persons living or being
within the same.
[Sidenote: The case of the Cherokee Nation.]
The Indians then caused an original bill to be filed in the Supreme
Court of the United States against Georgia, together with a
supplemental bill praying for a temporary injunction to restrain the
Commonwealth from enforcing its jurisdiction, and for the issuing of a
subpoena to Georgia to appear before the Court. The Court issued its
summons, but the Commonwealth made no answer, and the Court decided,
in its January term of 1831, that the Cherokee nation was not a
"State" in the sense of that provision of the Constitution which
designates the parties qualified to sue in the United States Courts.
This decision was pronounced immediately after the execution of the
Cherokee Tassells by the Georgia authorities, in defiance of a writ of
error addressed to the Commonwealth by a United States court,
requiring the Commonwealth to show cause why he should not be
discharged from custody. It is probable that the Supreme Court was
impressed by this demonstration of the impotence of the judiciary to
interfere successfully with the political policy of a Commonwealth,
even in behalf of personal liberty.
[Sidenote: The case of Worcester against Georgia.]
A year later the Court took a more national view and stand. A
Presbyterian missionary to the Cherokees, the Rev. Samuel A.
Worcester, of Vermont, had {219} violated the Georgia statute, which
made it a criminal offence to reside among the Cherokees after March
1st, 1831, without a license from the Governor, and without having
taken an oath to support and defend the laws of the Commonwealth. He
was indicted and tried by a Georgia court, found guilty, and condemned
to imprisonment in the penitentiary of the Commonwealth. A writ of
error was issued by one of the Justices of the Supreme Court of the
United States, requiring the Commonwealth of Georgia to show cause why
the prisoner should not be discharged. The writ was served on the
Governor and the Attorney-General of the Commonwealth. The only answer
which the Commonwealth gave to the summons was the sending up of the
record of the case, signed by the clerk of the court which pronounced
the judgment, and authenticated by the seal of the court. The judge of
the Georgia court did not sign the record. Nevertheless the Supreme
Court of the United States decided that the record of the Georgia
court was properly before it, and the Chief Justice proceeded to make,
in the Court's opinion of the case, an exhaustive review of the Indian
relations of the United States, in accord with the principles of the
Adams Administration, and to pronounce the statute of Georgia,
asserting the jurisdiction of the Commonwealth over the Cherokee lands
and over all persons residing or being on them, unconstitutional,
null, and void, and the arrest, trial, and sentence of Mr. Worcester
under the same to have been, therefore, without warrant of law.
But the Georgia authorities paid no attention to the decision. They
did not liberate the prisoner or accord him a new trial. Later on, the
Governor of the Commonwealth pardoned him as his own act of grace.
[Sidenote: The failure of the President to execute the decision in the
Worcester case.]
It was certainly the duty of the President of the {220} United States
to have executed this decision of the Court with all the power
necessary for the purpose which the Constitution conferred upon him.
He did not do it. It is said on very good authority that he intimated,
at least, that he would not do it. The Commonwealth simply defied the
Court successfully, and the President and Congress acquiesced in the
result. The President agreed in opinion with the Georgians upon the
subject, and the doctrine which here triumphed was one more plank in
the platform of the Jacksonian democracy, a real "States' rights"
principle.
[Sidenote: Jackson and Calhoun.]
There is no doubt that the South Carolinians were encouraged by the
course of events in Georgia to believe that they would have something
like the same experiences and results in their contest with the
Government. In this they do not seem to have fully realized the fact
that President Jackson did not agree with them in their view of the
unconstitutionality of the tariff, as he agreed with the Georgians in
their view of the Indian question. Moreover, there was a personal
element in the controversy which they do not seem to have appreciated
at all. Jackson had, down to 1830, supposed that Mr. Crawford was the
member of the Cabinet of Mr. Monroe, in 1819, who wanted to have him
arrested and tried by a court-martial for disobeying orders, or acting
in excess of orders, during the Seminole War, and that Mr. Calhoun was
his defender. Jackson's hatred of Crawford had been intense during
these years for this reason. In 1830 Governor Forsyth, of Georgia,
revealed to Jackson the truth in regard to this matter, which was that
Calhoun was for arraigning him and Adams was his defender. Jackson
immediately demanded an explanation of Calhoun, but the reply did not
at all satisfy him, and the hostility which he had {221} felt for
Crawford was now turned with redoubled force against Calhoun. Calhoun
was now regarded by Jackson as a traitor to Jackson, and that meant,
in Jackson's mind, that he was a traitor to his country. Any movement
against the Government or the laws of the United States headed by
Calhoun would be considered by Jackson as rebellion, most surely so
while Jackson was President.
[Sidenote: The call of the Convention of 1832 in South Carolina.]
Following the principles developed in Mr. Calhoun's letter of August
28th, 1832, Governor Hamilton issued a call for a special session of
the legislature of South Carolina, in the autumn of 1832, for the
purpose of effecting through it the assembly of the convention of the
Commonwealth. The party in favor of nullification had at last secured
both branches of the legislature, and on October 24th, 1832, the
assembled legislature voted to issue the call for the convention, and
appointed November 19th as the day upon which it should meet.
[Sidenote: The work of the Nullification Convention.]
The convention assembled at the time designated, elected Governor
Hamilton as its chairman, and appointed a committee of twenty-one
members to consider the situation and report a proposition to meet it.
In due time this committee made its report to the convention, in which
was contained, first, a review of the development of the tariff from a
revenue measure to a measure for the protection of manufactures, of
the ten years of fruitless struggle in Congress by the South against
the oppression inflicted by the protective system upon that section,
and of the theories advanced by the fathers of the Republic for
meeting, in last instance, such a condition of affairs; and, second,
the famous Ordinance of Nullification as the remedy of last resort.
The convention voted to receive the report and to adopt its
recommendations. {222} On November 24th the convention passed, in
solemn form, the Ordinance of Nullification of the existing tariff
laws of the United States.
[Sidenote: The Nullification Ordinance.]
The convention declared and ordained in this instrument, that "the
several acts and parts of acts of the Congress of the United States,
purporting to be laws for the imposing of duties and imposts on the
importation of foreign commodities, and now having actual operation
and effect within the United States, and, more especially," the Act of
May 19th, 1828, and that of July 14th, 1832, "are unauthorized by the
Constitution of the United States and violate the true meaning and
intent thereof, and are null and void and no law, nor binding upon
this State, its officers or citizens; and all promises, contracts, and
obligations made or entered into, or to be made or entered into, with
purpose to secure the duties imposed by the said acts, and all
judicial proceedings which shall be hereafter had in affirmance
thereof, are and shall be held utterly null and void."
It further ordained that no appeal should be allowed from the
decisions of the courts of the Commonwealth to the Supreme Court of
the United States in questions involving the validity of the aforesaid
Acts of Congress, or of the Ordinance of the convention annulling
them, or of the acts of the legislature giving effect to the
Ordinance, and that no copy of the proceedings in the courts of the
Commonwealth should be allowed for any such purpose, but that the
courts of the Commonwealth should proceed to execute their decisions
upon such issues without regard to any attempts to appeal therefrom,
and should deal with any person making such attempt as being guilty of
contempt of court. It then commanded that all the officers of the
Commonwealth, civil and military, and the jurors empanelled in the
courts should take the {223} oath to obey, execute, and enforce the
Ordinance, under penalty of dismissal and disqualification; and
finally, it declared that South Carolina would regard her connection
with the Union as absolved, in case Congress should pass any act
authorizing the employment of military force to reduce her to
obedience to the nullified acts, or any act abolishing or closing the
ports, or obstructing the free ingress and egress of vessels, or in
case the United States should undertake to coerce the Commonwealth, or
enforce the nullified acts otherwise than through the civil tribunals
of the country.
For the execution of the provisions of the Ordinance the convention
commanded the legislature to pass such measures as would prevent the
enforcement of the nullified acts, and give full effect to the
nullifying Ordinance, from and after February 1st, 1833, and commanded
the obedience of all persons within the limits of the Commonwealth to
the Ordinance and the legislative acts passed for its execution.
[Sidenote: The Addresses issued by the Convention.]
With the Ordinance the convention issued two addresses, one to the
people of South Carolina, and the other to the peoples of the other
Commonwealths, naming each separately. The one to the people of South
Carolina contained the theory of nullification, as elaborated by
Calhoun, and the justification of its employment in the existing
situation. It closed with an appeal to their love of liberty and a
demand of obedience. The address to the peoples of the several
Commonwealths contained an announcement of the passage of the
nullifying Ordinance, the theory upon which it was based, an assertion
of the unconstitutionality of the protective tariff, and its
oppression upon the people of South Carolina, and a declaration of the
spirit and feeling of the convention, and of the people it
represented, toward the Union, the {224} Constitution and the people
of the manufacturing Commonwealths. The latter part of this address
contained the only new point to be noticed. It was the offer of a plan
for a compromise tariff which would satisfy the South Carolinians. The
plan was the imposition of the same rate of duty upon all articles,
those not coming into competition with the products of the country and
those coming into such competition, and the raising of no more revenue
than should be necessary to meet the demands of the Government for
constitutional purposes.
[Sidenote: The Ordinance communicated to the Legislature of South
Carolina.]
In a message of November 27th, Governor Hamilton communicated to the
legislature of the Commonwealth the Ordinance of Nullification and
recommended the enactment of measures by that body for the execution
of the Ordinance.
On December 13th, the new Governor, Colonel Hayne, who had resigned
his seat in the Senate in order that Mr. Calhoun, who had himself
resigned the vice-presidency, might be made South Carolina's
representative in the Senate, or, as the South Carolinians now
considered it, South Carolina's ambassador to the Government of the
United States, pronounced his inaugural address before the
legislature, dedicating himself to the service of the Commonwealth in
the execution of her Ordinance of Nullification.
[Sidenote: The Acts of the Legislature for the execution of the
Ordinance.]
The legislature immediately passed the acts required by the convention
and recommended by the Governor.
The first act, termed the Replevin Act, authorized any consignee of
merchandise, or any person lawfully entitled to the possession of
merchandise, held or detained for the payment of the duties imposed
upon the same by the nullified Acts of Congress, to recover possession
of the same, with {225} damages for its detention, by a writ of
replevin, that is, by a summary procedure executed by an officer of
the Commonwealth; and the Act authorized this officer, on initiation
of the plaintiff in replevin, to seize the private property of the
person detaining the merchandise to double the value of the latter, in
case this person should refuse to deliver the detained merchandise to
the sheriff, or should put it out of the sheriff's way, and to hold
the property so seized until the merchandise in question should be
produced and delivered to the sheriff.
This Act also authorized any person paying the nullified duties to
recover the money paid, with interest on the same, by an action, in a
court of the Commonwealth, for money had and received; and it
authorized any person suffering arrest or imprisonment by order of any
United States court, in execution of the nullified Acts, to demand the
privilege of the writ of habeas corpus, and to maintain an action for
unlawful arrest and imprisonment.
It declared the sale of any property seized by a United States court,
in execution of the nullified Acts, to be illegal, and ordained that
such sale should convey no title to the purchaser. It forbade any
officer of a court of the Commonwealth to furnish the record, or a
copy of the record, or allow a copy of the record to be taken, of any
case in which the validity of the nullified Acts or the nullifying
Acts should be drawn in question, under penalty of both fine and
imprisonment, and it forbade any person to attempt to recapture the
goods delivered by the sheriff to the plaintiff in replevin, under
threat of the same punishment.
It further forbade the keepers of the jails to receive and detain any
person arrested or committed by virtue of any proceeding for enforcing
the nullified Acts, under penalty of both fine and imprisonment; and
it imposed {226} a similar penalty upon the offence of hiring,
letting, or procuring any place to be used as a place of confinement
for such person.
Finally, it forbade any person to disobey, obstruct, prevent, or
resist any process allowed by this Act, under penalty of both fine and
imprisonment; and it threatened every plaintiff, who should bring suit
against any officer or person executing or aiding in the execution of
the provisions of this Act, with adverse judgment and double costs.
The second Act of the legislature was a measure to provide for the
event of the employment of military power by the general Government to
enforce the nullified Acts in South Carolina. It authorized the
Governor of the Commonwealth to resist the same; and for this purpose
to order into service the whole military power of the Commonwealth at
his discretion, to purchase arms, accoutrements, and ammunitions, and
to appoint his military staff; and it authorized and obligated the
Governor to use military power in suppressing opposition to the laws
of the Commonwealth by combinations too powerful to be controlled by
the civil officers.
The third Act was the test oath, the oath to obey, execute, and
enforce the Ordinance of Nullification, and all the acts of the
legislature for its enforcement, which every officer of the
Commonwealth must take before dealing with any question touching the
nullified Acts or the nullifying Acts, and which the Governor might
require of any officer whatever.
These were the details and the forms of the issue which South Carolina
now offered to the United States. Was it rebellion, or was it
constitutional and legal opposition?
[Sidenote: The meaning of Nullification as understood by the
Nullifiers.]
As we have seen, Calhoun and the members of the {227} nullifying
convention held it to be the latter. They argued that the reserved
powers of the Commonwealths are recognized by the Constitution; that
every conceivable power is reserved to the Commonwealths, except such
as are vested by the Constitution in the general Government
exclusively, or are denied by the Constitution to the Commonwealths;
that the power to pronounce an act of the general Government null and
void had been neither so vested nor so denied; that this was,
therefore, a reserved power of the Commonwealths, and was, like all
other reserved powers, a constitutional power; that South Carolina
proposed to use this power through judicial means only, which means
were legally and constitutionally at her disposal through the
principle of the governmental system of the United States that general
criminal jurisdiction belongs exclusively to the Commonwealths; and
that the employment of military power by the Commonwealth, indicated
in the Ordinance and the legislative acts for its enforcement, was to
be resorted to only in self-defence, only to repel the possible attack
of the military power of the general Government upon South Carolina.
It is entirely evident that the South Carolina statesmen and lawyers
thought they had so fashioned the laws of the Commonwealth as to force
the general Government to the first violation of legal order in
attempting to execute the nullified Acts of Congress--that is, they
thought they had made it impossible for the general Government to
execute these Acts by regular legal methods; and that they had done so
without themselves violating any rule or principle of American
jurisprudence. They repeated the assertion, again and again, that they
did not rest their case on moral, or on revolutionary, principles, but
on strict constitutional {228} right; and it is impossible to prove
that they were insincere.
The great question now was, what attitude the general Government would
take toward the attempt of a Commonwealth to defeat the supremacy of
its laws. Naturally the Executive Department must act first, since
nullification was directed against the execution of existing laws.
[Sidenote: Jackson's view of Nullification.]
In his message of December 4th (1832), President Jackson referred
briefly to the events of the preceding month in South Carolina, but
did not seem to have fully appreciated their purport. He said he hoped
the United States courts would be able to cope successfully with the
difficulties in South Carolina, and that, if they were not, he thought
that the existing laws gave the President sufficient power to suppress
any attempts which might be immediately made against the supremacy of
the Government.
[Sidenote: The Tariff in the Annual Message of 1832.]
He devoted a much larger portion of the message to a consideration of
the tariff, and declared that the time had arrived for the United
States to enter upon the realization of the policy of a tariff for
revenue only, and of the ultimate limitation of protection to those
articles of domestic manufacture indispensable to the country in time
of war.
It is possible that the President did, after all, understand the
serious nature of the situation from the outset, and hoped, by his
pronounced recommendations in regard to the tariff, and his very mild
utterances concerning nullification, to influence the South
Carolinians to a reconsideration of their hasty acts, and give them a
loophole of escape from their very dubious and embarrassing position.
[Sidenote: The President's Proclamation of December 10th.]
He waited for six days, and then issued the noted proclamation of
December 10th, which presented the {229} President's idea of the
relation of the United States, as a nation, and of the general
Government, to the Commonwealths, asserted the supremacy of United
States law over Commonwealth law, demonstrated the true character of
nullification as rebellion, and declared the President's intention to
execute the laws of the United States against any and all opposition.
The President assumed as his cardinal principle that the Union
preceded independence, and that by a joint act the people of the
united colonies declared themselves a nation; that, as a nation, the
people of the United States established the Constitution of 1787, and
placed in that instrument the provision that the Constitution, and the
laws and treaties made in accordance therewith, are "the supreme law"
of the land, and that "the judges in every State shall be bound
thereby, anything in the constitution or laws of any State to the
contrary notwithstanding." From these principles the President derived
the conclusions that no legal processes, which South Carolina could
contrive, could prevent the execution of the laws of the United States
in South Carolina; that to accomplish this South Carolina would be
obliged to have recourse to violence; and that this necessity stamped
nullification as rebellion.
The President stopped the loophole of escape from this reasoning, made
by the claim of the nullifiers that the nullified Acts were not laws
made in accordance with the Constitution, by the declaration that the
Judicial Department of the general Government was the body designated
by the Constitution to determine that question, and not a Commonwealth
convention.
After warning the nullifiers to desist from their unlawful enterprise,
the President closed his message with an eloquent appeal to the people
of South Carolina to {230} withdraw from their unjustifiable and
dangerous position, and an equally eloquent appeal to the people of
the United States for aid and support in preserving the Union and
maintaining the supremacy of the Government and the laws.
[Sidenote: The President's military preparations.]
Already before the passage of the Ordinance of Nullification, the
President had caused the United States military officers stationed in
and about Charleston to be informed of their danger, had ordered two
artillery companies from Fort Monroe to Fort Moultrie, had commanded
General Scott to go to Charleston and do what might be necessary for a
successful defence of the forts and places held by the Army of the
United States, and had directed all the officers in command to defend
their possession of these forts and places to the last extremity.
[Sidenote: The President's instructions to the customs officers in
South Carolina.]
The President had also caused the collectors of the customs at
Charleston, Georgetown, and Beaufort to be reminded of their powers
under the laws of the United States, and had authorized them to make
use of all the revenue cutters in the harbors, and of such other
vessels as they could secure, and to call to their assistance the
officers of the cutters, and to appoint a number of inspectors
sufficient to execute successfully the laws of the United States for
the collection of the duties. The collector at Charleston was
specially authorized to remove the custom-house to Castle Pinckney, at
his discretion; and the United States District Attorney at Charleston
was ordered to aid the collector with counsel and advice.
After the passage of the Ordinance, the President ordered five more
companies of artillery from Fort Monroe to Fort Moultrie, commanded
the removal of the custom-house from Charleston to Castle Pinckney,
and sent General Scott to Charleston Harbor to take command, {231} on
the spot, of all the forts and garrisons there, instructing him to
avoid collision with the forces of the Commonwealth so long as
possible, but, in case the exigency should arise requiring the
exercise of military power, to act with firmness and decision, and to
hold possession of the forts by all means and at every hazard.
[Sidenote: The popular approval of the President's course.]
The brave, loyal, and patriotic, yet wise and considerate, stand taken
by the President was supported with great unanimity and enthusiasm
throughout the North; and though the people of the Southern
Commonwealths felt more sympathy with their South Carolina brethren,
yet the dissent from the President's views and attitude in that
section was rare and feeble. The nation was with the President, and
the President had done his duty nobly and fearlessly.
[Sidenote: The Verplanck Tariff Bill.]
The turn now came upon Congress. Would Congress sustain the President,
and give him all the means necessary to conquer nullification and
secession in fact, and destroy them in principle? Unfortunately, so
far as finite reason can judge, the first movements made in Congress
were in the opposite direction. That part of the President's message
which dealt with the question of the tariff was referred by the House
of Representatives to its committee on Ways and Means, and on December
27th, 1832, the chairman of that committee, Mr. Verplanck, of New
York, reported a bill from the committee which proposed to reduce and
equalize duties largely, and in the direction of the South Carolina
principle. If this bill should pass, the nullifiers could well assume
that their Ordinance had accomplished its purpose without being
applied, and could with triumphant dignity desist from the application
of it; and they could defer with almost equal dignity the application
of the Ordinance, {232} so long as there was any probability of the
passage of this bill.
[Sidenote: Governor Hayne's Counter-proclamation.]
Seven days before the introduction of this bill, Governor Hayne had
issued a counter-proclamation to the President's proclamation of
December 10th, in which he went over again the ground of nullification
and secession, warned the citizens of South Carolina against the
President's "pernicious" doctrines, and accused the President of
indulging in unwarrantable imputations upon South Carolina. He gave
notice, on the same day, that he would accept the service of
volunteers. The legislature supported the Governor in defiant
resolutions, which it sent to Congress, and caused to be read in that
body.
[Sidenote: The President's Message of January 16th, 1833.]
The President was much ruffled by the arrogant language of the
Governor and legislature, and when the Verplanck bill appeared, it
must have looked to him too much like surrendering the entire field,
which he was not now in any mood to do. He felt that something more
must be done to vindicate the authority and the dignity of the
Government. On January 16th, 1833, he sent another message to
Congress, demonstrating and denouncing again the pernicious character
of the nullification doctrine, informing Congress that he had removed
the custom-house from Charleston to Castle Pinckney, and asking
Congress for the power to change the customs districts and ports of
entry, to exact the payment of duties in cash, and to use the land and
naval forces when necessary for the execution of the revenue laws.
[Sidenote: Calhoun's explanations in the Senate.]
The message was referred by the Houses of Congress to their respective
committees on the Judiciary; but immediately upon the reading of the
message, and before the Senate had passed the motion to refer, Mr.
Calhoun said, in that body, that there was no foundation whatever for
the {233} statement in the message that the movements made by South
Carolina were intended as hostile to the Union, or were so. He called
the attention of the Senate to the fact that before the Ordinance of
Nullification was passed, before the convention had assembled, United
States troops had been sent to Charleston Harbor; and he declared
that, previous to this circumstance, South Carolina had looked to
nothing beyond a civil process, and had intended to give effect to her
opposition merely in the form of a suit at law, and that it was only
when a military force had been displayed on her borders, and in her
limits, and when a menace was thrown out against the lives of her
citizens, that they found themselves driven to an attitude of
resistance.
[Sidenote: The "Force Bill."]
On the 21st of the month (January), Mr. Wilkins, the chairman of the
Judiciary committee of the Senate, reported from his committee the
bill for the collection of the revenue. This bill provided for
extending the jurisdiction of the Circuit Courts of the United States
over all cases in law or equity arising under the revenue laws of the
United States; for making all property taken or detained by any
officer or person under authority of any law of the United States
irrepleviable by any order or process of the tribunals of a
Commonwealth; for effecting the removal of suits commenced in a
Commonwealth court against any officer or person for any act done
under the laws of the United States, or on account of any right,
authority, or title claimed under those laws, to the Circuit Courts of
the United States, by means of proof laid before the Circuit Court
that the defendant had petitioned the Commonwealth court for the
removal of the cause. The bill provided, further, for substituting for
a copy of the record of the proceedings in the {234} Commonwealth
court, in case of the failure of that court to furnish a copy, an
affidavit, or other evidence, as the circumstances of the case might
require; for giving to the United States judges the power to grant
writs of habeas corpus in all cases where persons were in confinement
for acts done in pursuance of a law of the United States, or of an
order, process, or decree of any United States court or judge; for
empowering the United States marshals, under direction of the United
States judges, to provide places of confinement for persons arrested
or committed under the laws of the United States, where any
Commonwealth should refuse the use of its jails for the confinement of
such persons; for allowing the President to change the custom-house
from one place in a collection district to another, and to require the
duties to be paid in cash; and for empowering the President to use the
land and naval forces for suppressing any resistance to the execution
of the revenue laws too powerful to be overcome by the civil officers
of the general Government.
It was a good, stiff measure, but it was constitutional at every
point, and it was demanded by the exigencies of the situation. It was
a complete answer to the Replevin Act of South Carolina, and it would
inevitably throw the responsibility for committing the first act of
violence upon the Commonwealth in any resistance to the collection of
the duties. It pricked the bubble completely of South Carolina's
proposed legal resistance to the execution of the laws of the United
States.
Of course the bill was denounced at once by the South Carolinians as a
"Force Bill." Calhoun attacked it as a measure for coercing a
sovereign "State," and offered a series of "States' rights"
propositions, which he declared to be indisputable, and which must,
therefore, prevent the passage of the bill. The discussion upon {235}
these resolutions, and upon the bill which they were meant to destroy,
dragged on from day to day in the Senate, while that upon the
Verplanck bill in the House proceeded even more slowly.
[Sidenote: The postponement of the execution of nullification.]
The chiefs of the nullifiers, professing to feel that the Government
was yielding, reassembled in convention in the last days of January,
and postponed the execution of their Ordinance until the end of the
existing Congressional session.
On February 8th, Mr. Bell, the chairman of the Judiciary committee of
the House of Representatives, reported to that body that his committee
did not recommend vesting the President with any further powers for
the execution of the revenue laws than those already possessed by him,
and that they could not approve of the employment of military force
for the purpose.
[Sidenote: The Compromise Tariff.]
Such was the situation when, on February 12th, Mr. Clay astonished the
Senate with the noted proposition for compromise. This was his bill
for the gradual reduction of the duties to a revenue basis. The
revenue basis was fixed in the bill at twenty per centum _ad valorem_
on all articles then paying a higher duty, and the excess was to be
remitted in biennial instalments, and entirely abolished from and
after June 30th, 1842. The free list was slightly extended, and cash
payments, from and after June 30th, 1842, were provided.
[Sidenote: Mr. Clay on the situation.]
Mr. Clay said, in introducing this bill, that he had two purposes in
view: one to save what could be saved of the protective tariff, and
the other to allow South Carolina to withdraw with dignity from the
position which she had rashly assumed. He claimed that his feeling
toward the action of South Carolina had changed since her
Representatives and Senators in Congress had disavowed rebellion and
had {236} asserted that they were only trying to invent legal methods
for protecting themselves against the oppression of the tariff Acts.
He demonstrated very clearly the error of supposing that they could do
any such thing, and then urged his brother Senators to join him in the
proposed measure of conciliation.
[Sidenote: Mr. Calhoun's support of Mr. Clay's bill.]
Mr. Calhoun immediately indicated that the bill would have his
support, and would solve the difficulties between South Carolina and
the general Government. He professed to see in it the concession of
about all that South Carolina had asked.
[Sidenote: The opposition to the bill.]
The opposition to the bill came from three quarters--from the
protectionists, who clung to the existing law, from the strong
nationalists, who were against any show of compromise with
nullification, and from the strict parliamentarians, who held that any
bill touching the tariff must originate in the House of
Representatives.
The protectionists were answered, and many of them won over, by the
argument that the Verplanck bill would pass if they did not accept Mr.
Clay's bill. The strong nationalists were told that if Congress should
pass the Wilkins bill before the Clay bill a sufficient vindication of
their position would be attained. They were inclined to accept that
view, but the South Carolinians set themselves against this order of
procedure with all their strength. Mr. Calhoun came forward again with
his "States' sovereignty" exposition of the Constitution, and
denounced the Wilkins bill in the most vehement language as "utterly
unconstitutional, as an attempt to enforce robbery by murder, an
attempt to decree the massacre of the citizens of South Carolina," and
declared that the citizens of South Carolina would, should it become
law, resist its execution "at every hazard, even that of death
itself."
{237} [Sidenote: Passage of the "Force Bill" by the Senate.]
On the following day Mr. Webster answered Mr. Calhoun's argument, and
demonstrated so clearly the nationality of the Constitution, the
supremacy of the laws of the United States, and the rebellious
character of nullification, that the Senate was convinced of the
necessity of passing the Wilkins bill before voting upon Mr. Clay's
bill. On the 20th of the month (February), the Senate passed the
Wilkins bill by a vote of thirty-two to one. The objections of the
strong nationalists to Mr. Clay's bill were now substantially
satisfied; but the high protectionists still held out in considerable
number for some modification of the bill in their favor, and on the
day after the passage of the Wilkins bill by the Senate, Mr. Clay
moved to amend his own bill by the proposition to base the duties on
home valuation instead of on the foreign invoice. The protectionists
were satisfied by this, but Mr. Calhoun immediately declared that
South Carolina would not accept the bill with this change. The
protectionists, in sufficient number to defeat the bill, declared that
they would not accept it without the change. Mr. Calhoun had at last
come to see the peril which lay in South Carolina's course, and to
understand the feeling of the nation toward her. He wisely concluded
to abandon his opposition to the amendment, and to vote for the bill.
[Sidenote: Passage of the Compromise Tariff bill and the "Force Bill"
by Congress.]
The opposition of the strict parliamentarians, on the ground that the
Senate could not originate a revenue bill, was overcome by the action
of the House of Representatives in substituting the Clay bill for the
Verplanck bill, and passing it on the 26th, and sending it to the
Senate for concurrence. The Senate now passed the House bill on March
1st, and the House immediately passed the Wilkins bill, against the
protest of {238} the South Carolinians that it could now have no
purpose since every member of Congress from South Carolina had voted
for the new Tariff Act.
[Sidenote: The nullification ordinance withdrawn.]
The President signed both bills at the same time, March 2nd, and South
Carolina rescinded the Nullification Ordinance.
[Sidenote: Motives and general results.]
It is not easy to see what principles or what party finally triumphed
in this contest, or to comprehend all the motives of the chief actors
in it. It has been said, or hinted, that Mr. Calhoun, chagrined and
disappointed at not gaining the presidency in 1832, was induced to
take the course which he followed in reference to nullification by the
hope of breaking up the Union and winning, thus, the presidency of a
Southern confederacy; that President Jackson was largely influenced,
in the decided attitude which he assumed, by the desire to take
revenge on Mr. Calhoun and South Carolina for Mr. Calhoun's attempt to
court-martial him more than a dozen years before, and for South
Carolina's slight upon him in the election of 1832; and that Mr. Clay
was moved far more by his jealousy of President Jackson, and his fear
of trusting him with extraordinary powers, than by any dread of the
destruction of the Union.
There is probably some truth in certain, if not in all, of these
speculations, but such things are not the matters of chief value in
the search for the line of development of the constitutional history
of this country. They do indeed help us to appreciate the motives for
the particular form of adjustment put upon that development at any
stage of its course; but our chief concern must be with the advance or
retrogression in principle of that development, our question must be
whether the Union and the Constitution were strengthened or weakened
by {239} the events of 1832 and 1833, whether the political
nationality of the country was cemented or suffered disintegration,
and whether strength was gathered, or the seeds of weakness were sown,
in the results attained.
From the point of view of the present, a point so much more national
than any reached before 1860, the settlement of 1833 is usually
regarded as a great misfortune, as a fateful error, which led the
country finally into civil war. It is now usually said that the
national cause lost everything in principle, and that nullification
was virtually acknowledged by the Act of Congress in repealing the
nullified laws, at the same moment that it enacted the measure for
upholding the supremacy of the laws of the United States.
From a purely historical view of the development of the constitutional
law of the country, this proposition does not seem to be true, at
least not without great modification. From such a point of view it
seems more correct to say, that the doctrine formulated by Mr. Calhoun
and his colleagues in South Carolina was only the exact logical
statement of the principles advanced by Mr. Jefferson in 1798,
principles through the advocacy of which Mr. Jefferson and the
Republicans turned the Federalists out of power and captured the
Government; that under the pressure of foreign war and through its
results, the Republican practice in administering the Government had
been driven into lines almost, if not quite, contradictory to the
Republican doctrine; that in the gradual relapse, after 1815, into the
humdrum of peace and business, the conditions were being revived for
the reassertion of the principles of 1800; and that, under such
conditions and in such a period, the doctrines advanced by President
Jackson, doctrines of a far more completely national system of
sovereignty, government, and liberty than were ever expressed {240} by
any preceding President, certainly mark a great advance in the
development of the national theory of the Constitution.
The South Carolinians said that John Quincy Adams invented these
doctrines, and that Jackson first essayed their application. Even Clay
declared that they were an advance upon his own views. And some of
Jackson's friends undertook, it was said with authority from Jackson
himself, to explain them away, so startled were they by their strong
nationalism.
But the spoken word cannot be recalled. It had gone forth, and the
nation had approved it. The politicians might split hairs in its
interpretation, but the people had heard from the highest authority
which they recognized that the United States was a sovereign nation,
and that the attempt of any combination of persons, whether calling
themselves a "State" or not, to resist by violence the execution of
the laws of the United States, or to withdraw themselves from their
operation, was rebellion, which the President was empowered and
required by the Constitution to suppress with the whole physical power
of the nation.
And besides the Proclamation there was the "Force Bill," which rested
upon the same theory of the political system of the country as the
Proclamation. The Congress as well as the President was now
inculcating the national doctrine. Calhoun and his friends knew what
an influence this would exert. He said that he and they would never
rest content until this measure was expunged from among the Acts of
Congress.
It is true that the passage of the new Tariff Act appeared to take the
virtue out of the Proclamation and the "Force Bill;" but it is not at
all probable that the nullifiers would have retreated from their
ground so promptly, to say the least, except for the determined {241}
words of the President and the Congress, and the popular approval with
which they were received; and it is almost certain that, when it came
to the great crisis, twenty-eight years later, the people would not
have understood and supported the great principle that the general
Government has the right of self-preservation, in the exercise of all
its powers, throughout the whole territory of the Union, against
everything and everybody but the sovereign nation itself, except for
the great education in national principles which they received from
the Proclamation, and through the enactment of the law which gave the
sanction of Congress to the enforcement of its principles.
{242}