Chapter 10 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 Nullificat

ion 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Bill" by the Senate-Passage of the Compromise Tariff Bill and the "Force Bill" by Congress-The Nullification Ordinance Withdrawn.

The Indian

question

in Georgia.

Before nullification was resolved upon in South Carolina, something like it had been applied in Georgia. 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 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.

The demand of Georgia

for the extinguishment

of the Indian claims.

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.

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 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.

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 firm, and the Governor was obliged to yield for the moment.

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.

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 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.

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.

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 discreetly and courteously resolved not to embarrass the new Administration by committing the Government to any position in the question.

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 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.

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 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.

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.

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 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.

The failure of the

President to execute

the decision in the

Worcester case.

It was certainly the duty of the President of the 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.

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 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.

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.

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. On November 24th the convention passed, in solemn form, the Ordinance of Nullification of the existing tariff laws of the United States.

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 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.

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 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.

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.

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 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 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?

The meaning of

Nullification

as understood

by the Nullifiers.

As we have seen, Calhoun and the members of the 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 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.

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.

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.

The President's

Proclamation of

December 10th.

He waited for six days, and then issued the noted proclamation of December 10th, which presented the 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 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.

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.

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, 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.

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.

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, so long as there was any probability of the passage of this bill.

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.

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.

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 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.

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 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 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.

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.

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.

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 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.

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.

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."

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.

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 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.

The nullification ordinance withdrawn.

The President signed both bills at the same time, March 2nd, and South Carolina rescinded the Nullification Ordinance.

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 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 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 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.