Volume IV Part 62 (1/2)
What is the capital question in dispute? It is this: ”Whose prerogative is it to decide on the const.i.tutionality or unconst.i.tutionality of the laws?”[1479] Can States decide? Can States ”annul the law of Congress”?
Hayne, expressing the view of South Carolina, had declared that they could. He had based his argument upon the Kentucky and Virginia Resolutions--upon the theory that the States, and not the people, had created the Const.i.tution; that the States, and not the people, had established the General Government.
But is this true? asked Webster. He answered by paraphrasing Marshall's words in M'Culloch _vs._ Maryland: ”It is, sir, the people's const.i.tution, the people's Government; made for the people; made by the people; and answerable to the people.[1480] The people ... have declared that this Const.i.tution shall be the supreme law....[1481] Who is to judge between the people and the Government?”[1482]
The Const.i.tution settles that question by declaring that ”the judicial power shall extend to all cases arising under the Const.i.tution and laws.”[1483] Because of this the Union is secure and strong. ”Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall const.i.tutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?”[1484]
Then Webster swept grandly forward to that famous peroration ending with the words which in time became the inspiring motto of the whole American people: ”Liberty _and_ Union, now and forever, one and inseparable!”[1485]
Immediately after the debate between Hayne and Webster, Nullification gathered force in South Carolina. Early in the autumn of 1830, Governor Stephen Decatur Miller spoke at a meeting of the Sumter district of that State. He urged that a State convention be called for the purpose of declaring null and void the Tariff of 1828. Probably the National courts would try to enforce that law, he said, but South Carolina would ”refuse to sustain” it. Nullification involved no danger, and if it did, what matter!--”those who fear to defend their rights, have none. Their property belongs to the banditti: they are only tenants at will of their own firesides.”[1486]
Public excitement steadily increased; at largely attended meetings ominous resolutions were adopted. ”The att.i.tude which the federal government continues to a.s.sume towards the southern states, calls for decisive and unequivocal resistance.” So ran a typical declaration of a gathering of citizens of Georgetown, South Carolina, in December, 1830.[1487]
In the Senate, Josiah Stoddard Johnston of Louisiana, but Connecticut-born, made a speech denouncing the doctrine of Nullification, a.s.serting the supremacy of the National Government, and declaring that the Supreme Court was the final judge of the const.i.tutionality of legislation. ”It has fulfilled the design of its inst.i.tution; ... it has given form and consistency to the const.i.tution, and uniformity to the laws.”[1488] Nullification, said Johnston, means ”either disunion, or civil war; or, in the language of the times, disunion and blood.”[1489]
The Louisiana Senator sent his speech to Marshall, who answered that ”it certainly is not among the least extraordinary of the doctrines of the present day that such a question [Nullification] should be seriously debated.”[1490]
All Nullification arguments were based on the Kentucky and Virginia Resolutions. Madison was still living, and Edward Everett asked him for his views. In a letter almost as Nationalist as Marshall's opinions, the venerable statesman replied at great length and with all the ability and clearness of his best years.
The decision by States of the const.i.tutionality of acts of Congress would destroy the Nation, he wrote. Such decision was the province of the National Judiciary. While the Supreme Court had been criticized, perhaps justly in some cases, ”still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation.” It was absurd to deny the ”supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State.... A law of the land” cannot be supreme ”without a supremacy in the exposition & execution of the law.”
Nullification was utterly destructive of the Const.i.tution and the Union.[1491]
This letter, printed in the _North American Review_,[1492] made a strong impression on the North, but it only irritated the South.
Marshall read it ”with peculiar pleasure,” he wrote Story: ”M^r Madison ... is himself again. He avows the opinions of his best days, and must be pardoned for his oblique insinuations that some of the opinions of our Court are not approved. Contrast this delicate hint with the language M^r Jefferson has applied to us. He [Madison] is attacked ... by our Enquirer, who has arrayed his report of 1799 against his letter. I never thought that report could be completely defended; but M^r Madison has placed it upon its best ground, that the language is incautious, but is intended to be confined to a mere declaration of opinion, or is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a const.i.tution, but in opposition to it.”[1493]
At a banquet on April 15, 1830, in celebration of Jefferson's birthday, Jackson had given a warning not to be misunderstood except by Nullifiers who had been blinded and deafened by their new political religion. ”The Federal Union;--it must be preserved,” was the solemn and inspiring toast proposed by the President. Southern leaders gave no heed. They apparently thought that Jackson meant to endorse Nullification, which, most illogically, they always declared to be the only method of preserving the Union peaceably.
Their denunciation of the Tariff grew ever louder; their insistence on Nullification ever fiercer, ever more determined. To a committee of South Carolina Union men who invited him to their Fourth of July celebration at Charleston in 1831, Jackson sent a letter which plainly informed the Nullifiers that if they attempted to carry out their threats, the National Government would forcibly suppress them.[1494]
At last the eyes of the South were opened. At last the South understood the immediate purpose of that enigmatic and self-contradictory man who ruled America, at times, in the spirit of the Czars of Russia; at times, in the spirit of the most compromising of opportunists.
Jackson's outgiving served only to enrage the South and especially South Carolina. The Legislature of that State replied to the President's letter thus: ”Is this Legislature to be schooled and rated by the President of the United States? Is it to legislate under the sword of the Commander-in-Chief?... This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses.”[1495]
Marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. ”Things to the South wear a very serious aspect,” he tells Story. ”If we can trust appearances the leaders are determined to risk all the consequences of dismemberment. I cannot entirely dismiss the hope that they may be deserted by their followers--at least to such an extent as to produce a pause at the Rubicon. They undoubtedly believe that Virginia will support them. I think they are mistaken both with respect to Virginia and North Carolina. I do not think either State will embrace this mad and wicked measure. New Hamps.h.i.+re and Maine seem to belong to the tropics. It is time for New Hamps.h.i.+re to part with Webster and Mason. She has no longer any use for such men.”[1496]
As the troubled weeks pa.s.sed, Marshall's apprehension increased. Story, profoundly concerned, wrote the Chief Justice that he could see no light in the increasing darkness. ”If the prospects of our country inspire you with gloom,” answered Marshall, ”how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? I yield slowly and reluctantly to the conviction that our const.i.tution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus far by miracles. I fear they cannot continue.”[1497]
Congress heeded the violent protest of South Carolina--perhaps it would be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it reduced tariff duties; but the protective policy was retained. The South was infuriated--if the principle were recognized, said Southern men, what could they expect at a later day when this capitalistic, manufacturing North would be still stronger and the unmoneyed and agricultural South still weaker?
South Carolina especially was frantic. The spirit of the State was accurately expressed by R. Barnwell Smith at a Fourth of July celebration: ”If the fire and the sword of war are to be brought to our dwellings, ... let them come! Whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!”[1498] At meetings all over the State treasonable words were spoken. Governor James Hamilton, Jr., convened the Legislature in special session and the election of a State convention was ordered.
”Let us act, next October, at the ballot box--next November, in the state house--and afterwards, should any further action be necessary, let it be where our ancestors acted, _in the field of battle_”;[1499] such were the toasts proposed at banquets, such the sentiments adopted at meetings.
On November 24, 1832, the State Convention, elected[1500] to consider the new Tariff Law, adopted the famous Nullification Ordinance which declared that the Tariff Acts of 1828 and 1832 were ”null, void, and no law”; directed the Legislature to take measures to prevent the enforcement of those acts within South Carolina; forbade appeal to the Supreme Court of the United States from South Carolina courts in any case where the Tariff Law was involved; and required all State officers, civil and military, to take oath to ”obey, execute and enforce this Ordinance, and such act or acts of the Legislature as may be pa.s.sed in pursuance thereof.”
The Ordinance set forth that ”we, the People of South Carolina, ... _Do further Declare_, that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider” any act of the National Government to enforce the Tariff Laws ”as inconsistent with the longer continuance of South Carolina in the Union: and that the People of this State ...
will forthwith proceed to organize a separate Government, and to do all other acts and things which sovereign and independent States may of right do.”[1501]
Thereupon the Convention issued an address to the people.[1502] It was long and, from the Nullification point of view, very able; it ended in an exalted, pa.s.sionate appeal: ”Fellow citizens, the die is now cast. NO MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR COUNTRY, AND LEAVE THE CONSEQUENCES TO G.o.d.”[1503]
Excepting only at the outbreak of war could a people be more deeply stirred than were all Americans by the desperate action of South Carolina. In the North great Union meetings were held, fervid speeches made, warlike resolutions adopted. The South, at first, seemed dazed.