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ties on the importation of foreign commodities," passed in convention of this state, at Columbia, on the 24th of November, 1832.
This act provides, that any goods seized or detained, under pretence of securing the duties, or for the non-payment of duties, or under any process, order, or decree, or other pretext, contrary to the intent and meaning of the ordinance, may be recovered by the owner or consignee, by "an act of replevin.” That in case of refusing to deliver them, or removing them so that the replevin cannot be executed, the sheriff may seize the personal estate of the offender to double the amount of the goods; and if any attempt shall be made to retake or seize them, it is the duty of the sheriff io recapture them. And that any person who shall disobey the process, or remove the goods, or any one who shall attempt to reta ke or seize the goods under pretence of securing the duties, or for non-payment of duties, or under any process or decree, contrary to the intent of the ordinance, shall be fined and imprisoned, besides beiog liable for any other offence involved in the act.
It also provides that any person arrested or imprisoned on any judgment or decree obtained in any federal court for duties, shall be entitled to the benefit secured by the habeas corpus act of the state in cases of unlawful arrest, and maintain an action for damages; and that, if any estate shall be sold under such judgment or decree, the sale shall be held illegal. It also provides, that any jailer who receives a person committed on any process or other judicial proceedings to enforce the payment of duties, and any one who hires his house as a jail, to receive such persons, shall be fined and im: prisoned. And, finally, it provides that persons paying duties may recover. them back with interest.
The next is called “ An act to provide for the security and protection of the people of the state of South Carolina."
This act provides, that if the government of the United States, or any officer thereof, shall, by the employment of naval or military force, attempt to coerce the state of South Carolina inlo submission to the acts of Congress declared by the ordinance null and void, or to resist the enforcement of the ordinance, or of the laws passed in pursuance thereof, or in case of any armed or forcible resistance thereto, the governor is authorized to resist the same, and 10 order into service the whole or so much of the military force of the state as he may deem necessary; and that in case of any overt act of coercion or intention to commit the same, manifested by an unusual assemblage of naval or military forces in or near the state, or the occurrence of any circumstances indicating that armed force is about to be employed against the state or in resistance to its laws, the governor is authorized to accept the services of such volunteers, and call into service such portions of the militia, as may be required to meet the emergency
The act also provides for accepting the service of the volunteers, and organizing the militia, embracing all free white males between the ages of sixteen and sixty, and for the purchase of arms, ordnance, and ammunition. It also declares that the power conferred on the governor shall be applicable to all cases of insurrection or invasion, or imminent danger thereof, and to cases where the laws of the state shall be opposed, and the execution thereof forcibly resisted, by combinations too powerful to be suppressed by the power vested in sheriffs and other civil officers; and declares it to be the duty of the governor, in every such case, to call' forth such portions of the militia and volunteers as may be necessary promptly to suppress such combinations, and cause the laws of the said state to be executed.
30, Is "an act concerning the oath required by the ordinance passed in convention at Columbia, on the 24th of November, 1832."
This act prescribes the form of the oath, which is, to obey and execute the ordinance and all acts passed by the legislature in pursuance thereof; and directs the time and manner of taking it by the officers of the state, civil, judicial, and military.
It is believed that other acts have been passed, embracing provisions for enforcing the ordinance, but I have not yet been able to procure them. I transmit
, however, a copy of Governor Hamilton's message to the legislature of South Carolina; of Governor Hayne's inaugural address to the same body, as also of his proclamation, and a general order of the gov. ernor and commander-in-chief
, dated the 20th of December, giving public notice that the services of volunteers will be accepted under the act already referred to.
If these measures cannot be defeated and overcome by the powers conferred by the constitution on the federal government, the constitution must be considered as incompetent to its own defence, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the government of the Union. They not only abrogate the acts of Congress, commonly called the tariff acts of 1828 and 1832, but they prostrate and sweep away, at once, and without exception, every act, and every part of every act, imposing any amount whatever of duty on any foreign merchandise; and, virtually, every existing act which has ever been passed, authorizing the collection of the revenue, including the act of 1816, and also the collection law of 1799, the constitutionality of which has never been questioned. It is not only those duties which are charged to have been imposed for the protection of manufactures that are hereby repealed, but all others, though laid for the purpose of revenue merely, and upon articles in no degree suspected of being objects of protection. The whole revenue system of the United States in South Carolina is obstructed and overthrown; and the government is absolutely prohibited from collecting any part of the public revenue within the limits of that state. Henceforth, not only the citizens of South Carolina, and of the United States, but the subjects of foreign states, may import any description or quantity of merchandise into the ports of South Carolina, without the payment of any duty whatsoever. That state is thus relieved from the payment of any part of the public burdens, and duties and imposts are not only rendered not uniform throughout the United States, but a direct and ruinous preference is given to the ports of that state over those of all the other states of the Union, in manifest violation of the positive provisions of the constitution.
In point of duration, also, those aggressions upon the authority of Congress, which, by the ordinance, are made part of the fundamental law of South Carolina, are absolute, indefinite, and without limitation. They neither prescribe the period when they shall cease, nor indicate any conditions upon which those who have thus undertaken to arrest the operation of the laws are to retrace their steps and rescind their measures. They offer to the United States no alternative but unconditional submission. If the scope of the ordinance is to be received as the scale of concession, their demands can be satisfied only by a repeal of the whole system of revenue laws, and by abstaining from the collection of any duties and imposts whatsoever.
It is true, that in the address to the people of the United States, by the convention of South Carolina, after announcing the “fixed and final determina
tion of the state in relation to the protecting system,” they say, "that it remains for us to submit a plan of taxation, in which we would be willing to acquiesce, in a liberal spirit of concession, provided we are met in due time, and in a becoming spirit, by the states interested in manufactures." In the opinion of the convention, an equitable plan would be, that "the whole list of protective articles should be imported free of all duty, and that the revenue derived from import duties should be raised exclusively from the unprotected articles, or that whenever a duty is imposed upon protected articles imported, an excise duty of the same rate shall be imposed upon all similar articles manufactured in the United States." The address proceeds to state, however, that “they are willing to make a large offering to preserve the Union, and with a distinct declaration that, as a concession on our part, we will consent that the same rate of duties may be imposed upon the protected articles that shall be imposed upon the unprotected, provided that no more revenue shall be raised than is necessary to meet the demands of the government for constitutional purposes, and provided also that a duty substantially uniform be imposed upon all foreign imports.”
It is also true, that, in his message to the legislature, when urging the necessity of providing "means of securing their safety by ample resources for repelling force by force," the governor of South Carolina observes, that he " cannot but think that, on a calm and dispassionate review by Congress, and the functionaries of the general government, of the true merits of this controversy, the arbitration by a call of a convention of all the states, which we sincerely and anxiously seek and desire, will be accorded to us."
From the diversity of the terms indicated in these two important documents, taken in connection with the progress of recent events in that quarter, there is too much reason to apprehend, without in any manner doubting the intentions of those public functionaries, that neither the terms proposed in the address of the convention, nor those alluded to in the message of the governor, would appease the excitement which had led to the present excesses. It is obvious, however, that should the latter be insisted on, they present an alternative which the general government, of itself, can by no possibility grant, since, by an express provision of the constitution, Congress can call a convention for the purpose of proposing amendments only "on the application of the legislatures of two thirds of the states." And it is not perceived that the terms presented in the address are more practicable than those referred to in the message.
It will not escape attention, that the conditions on which it is said, in the address of the convention, they would be willing to acquiesce," form no part of the ordinance. While this ordinance bears all the solemnity of a fundamental law, is to be authoritative upon all within the limits of South Carolina, and is absolute and unconditional in its terms, the address conveys only the sentiments of the convention in no binding or practical form; one is the act of the state, the other only the expression of the opinions of the members of the convention. To limit the effect of that solemn act by any terms or conditions whatever, they should have been embodied in it, and made of import no less authoritative than the act itself. By the positive enactments of the ordinance, the execution of the laws of the Union is absolutely prohibited; and the address offers no other prospect of their being again restored, even in the modified form proposed, than what depends upon the improbable contingency, that amid changing events and increasing
excitement, the sentiments of the present members of the convention, and of their successors, will remain the same.
It is to be regretted, however, that these conditions, even if they had been offered in the same binding form, are so undefined, depend upon so many contingencies, are so direcily opposed to the known opinions and interests of the great body of the American people, as to be almost hopeless of attain
The majority of the states, and of the people, will certainly not consent that the protecting duties shall be wholly abrogated never to be reenacted at any future time, or in any possible contingency. As little practicable is it to provide that “the same rate of duty shall be imposed upon the protected articles that shall be imposed upon the unprotected;" which, moreover, would be severely oppressive to the poor, and in time of war, would add greatly to its rigors. And though there can be no objection to the principle, properly understood, that no more revenue shall be raised than is necessary for the constitutional purposes of the government, which principle has been already recommended by the executive as the true basis of taxation; yet it is very certain that South Carolina alone cannot be permitted to decide what those constitutional purposes are.
The period which constitutes the due time in which the terms proposed in the address are to be accepted, would seem to present scarcely less diificulty than the terms themselves. Though the revenue laws are already declared to be void in South Carolina, as well as the bonds taken under them, and the judicial proceedings for carrying them into effect, yet, as the full action and operation of the ordinance are to be suspended until the first of February, the interval may be assumed as the time within which it is expected that the most complicated portion of the national legislation, a system of long standing, and affecting great interests in the community, is to be rescinded and abolished. If this be required, it is clear that a compliance is impossible.
In the uncertainty, then, which exists as to the duration of the ordinance, and of the enactments for enforcing it, it becomes imperiously the duty of the executive of the United States, acting with a proper regard to all the great interests committed to his care, to treat those acts as absolute and unlimited. They are so, as far as his agency is concerned. He cannot either embrace or lead to the performance of the conditions. He has already discharged the only part in his power, by the recommendation in his annual message. The rest is with Congress and the people; and until they have acted, his duty will require him to look to the existing state of things, and act under them according to his high obligations.
By these various proceedings, therefore, the state of South Carolina has forced the general government, unavoidably, to decide the new and dangerous alternative of permitiing a state to obstruct the execution of the laws within its limits, or seeing it attempt to execute a threat of withdrawing from the Union. That portion of the people at present exercising the authority of the state solemnly assert their right io do either, and as solemnly announce their determination to do one or the other.
In my opinion, both purposes are to be regarded as revolutionary in their character and tendency, and subversive of the supremacy of the laws and of the integrity of the Union. The result of each is the same; since a state in which, by an usurpation of power, the constitutional authority of the federal government is openly defied and set aside, wants only the form to be independent of the Union.
The right of the people of a single state to absolve themselves at will, and without the consent of the other states, from their most solemn obligations, and hazard the liberties and happiness of the millions composing this Union, cannot be acknowledged. Such authority is believed to be utterly repugnant both to the principles upon which the general government is constituted, and to the objects which it was expressly formed to attain.
Against all acts which may be alleged to transcend the constitutional power of government, or which may be inconvenient or oppressive in their operation, the constitution itself has prescribed the modes of redress. It is the acknowledged attribute of free institutions that, under them, the empire of reason and law is substituted for the power of the sword. To no other source can appeals for supposed wrongs be made, consistently with the obligations of South Carolina; to no other can such appeals be made with safety at any time, and to their decisions, when constitutionally pronounced, it becomes the duty, no less of the public authorities than of the people, in every case to yield a patriotic subroission.
That a state, or any other great portion of the people, suffering under long and intolerable oppression, and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the government, and appeal to the last resort, need not, on the present occasion, be denied.
The existence of this right, however, must depend upon the causes which may justify its exercise. It is the ultima ratio, which presupposes that the proper appeals to all other means of redress have been made in good faith, and which can never be rightfully resorted to unless it be unavoidable. It is not the right of the state, but of the individual, and of all the individuals in the state. It is the right of mankind generally to secure, by all means in their power, the blessings of liberty and happiness; but when, for these purposes, any body of men have voluntarily associated themselves under a particular form of government, no portion of them can dissolve the association without acknowledging the correlative right in the remainder to decide whether that dissolution can be permitted consistently with the general happiness. In this view, it is a right dependent upon the power to enforce it. Such a right, though it may be admitted to pre-exist
, and cannot be wholly surrendered, is necessarily subjected to limitations in all free governments, and in compacts of all kinds, freely and voluntarily entered into, and in which the interest and welfare of the individual become iden-tified with those of the community of which he is a member. In compacts between individuals, however deeply they may affect their relations, ihese principles are acknowledged to create a sacred obligation; and in compacts of civil governments, involving the liberty and happiness of millions of mankind, the obligation cannot be less.
Without adverting to the particular theories to which the federal compact has given rise, both as to its formation and the parties to it, and without inqniring whether it be merely federal, or social, or national, it is sufficient that it must be admitted to be a compact, and to possess the obligations incident to a compact; to be “a compact by which power is created on the one hand, and obedience exacted on the other; a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof, respectively; a compact by which the several states, and the people