The Nullification Controversy in South Carolina/Chapter 6

by Chauncey Samuel Boucher

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CHAPTER VI

NULLIFICATION ADOPTED (1832)

Immediately after the result of the election was known, Governor Hamilton issued a proclamation for an extra session of the legislature to convene on October 22. The plan was to have the convention meet and act before Congress should meet.^[1] Some of the Union papers soon questioned the constitutional right of the governor to call the extra session, and of the newly elected members to attend. The governor took the precaution of getting unofficial advisory opinions of the judges of the court of appeals; they agreed unanimously that the newly elected members might be convened. Since a majority of these judges were of the Union party, the State Rights men concluded that those who raised the objection did so simply to cause as much embarrassment as possible, now that it was ascertained that the state would act.^[2] The legislature convened on October 22, and an act was passed on October 25 calling for a convention to meet on the third Monday in November, Delegates were to be elected on the second Monday and Tuesday in November, and each election district was to elect delegates in number equal to its state senators and representatives. The bill passed the House by a vote of 96 to 25, and the senate by a vote of 31 to 13, just as was predicted from the election returns. The legislature adjourned at once, postponing all other business to its regular meeting at the end of November, when it could pass such acts as the convention should recommend. The action was unhesitating, and apparently an early adjustment of the difficulty was not expected, for the attempt was made to provide for such contingencies as might arise from the continuation of the convention for one year.^[3]

After the Nullifiers had captured the legislature by a majority sufficient to call a convention, they suggested that the Union party should abandon all opposition. The Mountaineer at once declared that such a request was inconsistent on the part of the Nullifiers, who were reminded that hitherto their doctrine had been that the minority had rights and that governments were established for the protection of minorities.^[4] The Union members of the legislature, the Union State Rights and Jackson party, as they sometimes called themselves, held a caucus in Columbia and asked the party men in each district to endeavor still to save the country by supporting a Union ticket for delegates to the convention. The Mountaineer urged the Union men in those districts where they had a majority to elect delegates, and in the doubtful ones not to give up the contest too soon. It also recommended that the leading men of the Union party be sent to the convention from the districts irrespective of their residence, so that the party would be represented by as much talent and weight of character as possible. Many now seemed to think that nothing would be done by the convention until after another session of Congress and that in the meantime a few strong men could do much to undeceive the people. In Charleston, however, the Union party central committee decided to offer no candidates. In some other districts there was no opposition to the State Rights tickets, but in a few the Unionists elected their men.^[5]

The question was soon raised as to what position the Union men would assume toward the convention; they gave an immediate and unequivocal answer, which was in consonance with the doctrines to which they had clung. In the first place, they wanted it clearly understood that they would not directly or indirectly sanction any act of nullification passed by the legislature or the convention. Suppose the federal and state governments should come into forcible and violent collision, which must the citizen obey? The Union men announced that when South Carolina should think proper to reclaim their allegiance by an act of secession, they must either obey the behest of her sovereign will or expatriate themselves; but that, so long as South Carolina admitted the Constitution and laws of the United States to be the supreme law of the land, anything in her own constitution and laws to the contrary notwithstanding, they would be constrained to uphold the paramount authority of the Constitution and laws of the Union. Nullification was to them incompatible with the federal Constitution and utterly at war with the very nature of the government, fatal to the uniformity of its operation, destructive of its efficiency, and calculated to produce irremediable anarchy and confusion. They must therefore oppose it.^[6]

The State Rights party then claimed that the Union leaders had pledged themselves to go with the state when she should decide to nullify; the Union men answered that they had given no such promise, but had pledged themselves to go with the state if she actually seceded from the Union. But suppose South Carolina, through the State Rights majority, should attempt to force the Union minority by pains and penalties to disobey the laws of the United States before she had absolved her citizens from their allegiance to the Union. The Union men protested that she would be placing her sons between treason on the one hand and confiscation on the other, and that such a course would inevitably lead to a civil war.

On November 19 the convention met at Columbia and within a few days adopted a series of important documents as the expression of the sovereign will of the state.^[7] The report of the "Committee of Twenty-one," written by Robert Y, Hayne, reviewed the history of the tariff and gave the grounds upon which its constitutionality was contested; it related how, in spite of the South Carolina protests, Congress had deliberately passed an act which removed the revenue duties and retained the purely protective ones. It declared South Carolina to be a sovereign state, recognizing "no tribunal upon earth as above her authority"; true, she had entered into a "solemn compact of Union with other sovereign states," but she claimed and would exercise the right to determine the extent of her obligations under that compact, and would not allow any other power to exercise the right for her. A great deal was said about "liberty" and "slavery," and the doctrines promulgated by Viiginia and Kentucky in 1798 were cited as authority sufficient to justify the position that South Carolina was now assuming.

The ordinance, drawn up by Chancellor William Harper, declared the tariff acts of 1828 and 1832 to be null and void. It then called upon the legislature to pass such acts as were needed to carry the ordinance into effect, and to prevent the enforcement of the tariff acts within South Carolina. It asserted that in no case of law or equity in the courts of the state could the authority of the ordinance or the acts of the legislature to give it effect be questioned, and that no appeal to the Supreme Court of the United States was to be allowed. All state officers were to be required to take an oath prescribed by the legislature, to "obey, execute, and enforce" the ordinance and the acts of the legislature made in pursuance thereof, and no juror was to be impaneled in any state court, in any case in which the ordinance or acts of the legislature were questioned, unless he should take such an oath. It announced for the people of South Carolina that they would not submit to the use of force by the federal government to reduce the state to obedience; that they would consider the passage by Congress of any act authorizing the employment of a military or naval force against the state or her citizens—

or any other act on the part of the federal government to coerce the state, shut up her ports, destroy or harrass her commerce, or to enforce the acts hereby declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of this state will henceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of other states, and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent states may of right do.

An address to the people of South Carolina, written by Robert J. Turnbull, was intended for the benefit of the Union men. It first stated that nullification was a natural, sovereign, reserved right, and then attempted to answer the various objections raised against nullification; it professed a belief that nullification would preserve and not desti:oy the Union, but admitted that Congress or the central government could give the controversy what issue it pleased. So much was simply a restatement of a position often presented. The real point was reached when the address announced that if appeals to reason proved unavailing to induce any of the people of the state—the Union men—to support the action of the convention, obedience would be commanded; it asserted that there was not and never had been any direct or immediate allegiance between the citizens of South Carolina and the federal government; that the relation between them was through the state and that the commands of the state were obligatory on her citizens.

An address to the people of the other states, named individually , prepared by George McDuffie, set forth the State Rights conception of the compact entered into between the sovereign states. It described the oppressiveness of the tariff and added that the people of South Carolina would not count the costs in vindicating their rights. They were willing to give much to preserve the Union, and, with a distinct declaration that it was a concession, they would consent to the same rate of duty on protected as on unprotected articles, provided that no more revenue were raised than was necessary to meet the demands of the government for constitutional purposes, and that a duty, substantially uniform, were imposed on all foreign imports. The address then gave warning to the general government that if South Carolina were driven out of the Union, all the other planting states and some of the western states would follow, for they would not continue to pay to the North, for the privilege of being united with the North, a tribute of 50 per cent on their consumption, when they could receive all their supplies duty-free through the ports of South Carolina. The address closed by disclaiming the slightest apprehension that the general government would attempt the use of force, but announced that, if it did, South Carolina would be "the cemetery of freemen rather than the habitation of slaves."

The proceedings of the convention were conducted with great solemnity, and there seemed to be very little excitement among the members of either party. The Union delegates silently voted against the report, ordinance, and addresses; the State Rights delegates adopted these measures unhesitatingly, confident that they were doing the bidding of the people expressed by their election. The convention was composed generally of men who had advanced to middle life or beyond it. There were but few young men, probably not one under twenty-five, and very few under thirty; there were several who had served in the Revolutionary War. The wealth of the state was well represented. Of talent, no one would deny that the convention could boast of a large share, for the papers adopted by the convention were pronounced, even by men of the opposition, as among the most able they had ever read.^[8]

The state legislature convened immediately after the convention adjourned, and proceeded to pass the acts necessary to carry the ordinance of nullification into effect. The governor's message had in it several features which called forth bitter resentment from the Union men. It was pronounced by them such a document as would harmonize with the acknowledged attributes of an "Eastern Despot, haughtily addressing his slaves," for it bore no feature which would entitle it to the honor of being called "an exposition of the affairs of a free people." The governor recommended that the legislature raise an army of 12,000 men, to be called the "State Guard." This the Union men said would be a standing army, dangerous to the liberties of the people—the first step toward the establishment of a military despotism. The governor would go even farther than the proscription of Union men from office by the "test oath," for he recommended a "bill of pains and penalties" to be enforced upon those who should disobey the ordinance, and an "act of treason" to apply to those who should raise their hands in defense of the Union.^[9]

The legislature passed an act ostensibly to afford a complete and peaceable protection against the tariff. The first and second clauses authorized any importer, consignee, or owner of goods to recover possession of his goods forthwith from a collector by an act of replevin, or by any other process authorized by law in cases of illegal seizure or detention of personal property. If the person who claimed the goods chose to proceed by replevin, he might make affidavit of the seizure or detention by the collector or his agent; a writ of replevin would be given to the sheriff, who would take possession of the goods and immediately deliver them over to the claimant upon his giving bond, to the value of the goods, that he would prosecute his suit and abide its decision. This bond the sheriff was to retain. The merchant, having received the goods, might dispose of them at pleasure; his declaration was to be filed; the case would come into court; the jury must be sworn to enforce the ordinance of nullification, and, of course, must decide that, the tariff being a nullity, the collector had no claim whatever to the goods; the bond given to the sheriff would be canceled and there the matter would end.

The third clause provided against the retention of goods by the collector or other federal agent in disobedience to the mandate of the court. In such case the sheriff was to make affidavit of the detention and take out a writ of withernam, under which he must seize the private property of the collector, to double the value of the goods detained, and retain it at the expense of the collector and for the benefit of the importer until the goods were surrendered. The fourth clause empowered the sheriff to resist any attempt to recapture the goods after he had delivered them to the merchant. The fifth authorized any person who should pay any duties to recover the amount with interest from the collector by an action of assumpsit. This action would take the usual course of an action on account or note of hand, and the merchant, after having received his goods and sold them, if he chose this remedy, would be sure of receiving the amount of duties and interest on them within a year at the most. If the sheriff should not be able to get the money, the collector himself might be seized.

The sixth clause entitled any person arrested or imprisoned by process of the federal court to immediate release by writ of habeas corpus on application to any judge of the state. It also entitled any such person to an action against the federal officer for unlawful arrest or imprisonment. The seventh clause provided that no title should be good if given by any federal officer for property sold for duties. The eighth endeavored to prevent appeal to a federal court by providing a fine and imprisonment for any official who should furnish any record which related in any manner to the ordinance and acts of nullification. The ninth subjected the collector and all his assistants or employees, aiders, or abettors, to fines and imprisonment for any disobedience to the process of replevin, or for any other attempt to resist or defeat this law; it also subjected them to indictment for any assault or offense involved in their misdemeanor. The tenth provided still heavier fines and imprisonment for all persons in any way concerned in recapturing or attempting to recapture goods which the sheriff had delivered to the merchant or owner. The eleventh declared that no public jail in the state should be used for the imprisonment of any person for nonpayment of duties, and the twelfth that no house or building in the state should be so used. To make sure that the federal violators of the law would be punished at the first court of sessions after the commission of their crime, the thirteenth clause provided that no indictment under this act should be traversed. The fourteenth directed that the fines were to go to the public treasury of the state. The fifteenth provided that the ordinance and the act might be given in evidence without being specially pleaded. The sixteenth and last announced that the act should take effect on the first day of the following February.^[10]

The State Rights men professed to believe that the whole project would work smoothly. A few consolidationists, they held, who said that they would pay the duties, might do so for a short time, but they could not meet competition long and would soon give in. No federal officer would dare to attempt to put himself in opposition to the South Carolina laws. The remedy would be applied peaceably through state courts, and since the people of South Carolina would commit no act of violence themselves, Jackson would be unable to find a pretext for commencing a conflict. He might "make faces and shake his fist and snap his fingers" at them as much as he pleased; they would "walk into the courthouse and leave him bullying on the green." They had told him that if he attempted force by blockading their harbors or otherwise cutting off their trade, they would secede; and if he resolved to fight them upon the right of secession, he would find more states opposing him than he expected to meet.^[11] But the legislature also made provision for the possibility that everything might not proceed as planned with its "peaceable" remedy. It passed an act authorizing the governor to accept an unlimited number of volunteer companies, to be ready to march at a moment's notice, "to suppress insurrection and repel invasion and support the civil authorities," which the Union men interpreted to mean to put down the Union party, trample on the rights and liberties of the people, and resist the United States government in the execution of its laws.^[12] A fund of $200,000 was appropriated to the contingent fund, always at the disposal of the governor, and $200,000 more for the purchase of arms.

During the preliminary discussions on nullification various and conflicting reports had come from other states as to their opinions of the doctrine. After South Carolina had taken the step, however, there was apparently no doubt that the action met but little favor, even in the other southern states.^[13] The South Carolinians who had looked to Virginia for support in their movement had long before this found themselves disappointed. The men of the western part of Virginia had early shown that they had no sympathy with thfe Nullifiers. In the lower Piedmont and Tidewater counties there was much sympathy with the South Carolina protest against the tariff, and even some sympathy with the nullification doctrine, but a majority even here agreed with Thomas Ritchie and the Richmond Enquirer, that nullification was unlike the Virginia doctrines of 1798 and without sanction or precedent, even though they disagreed with Ritchie on political questions related to the presidency. They believed in the compact theory of the formation of the central government and affirmed a belief in the right of secession; hence they disagreed with the President's proclamation on these points. Some expressed to the President an appreciation of the cause for which James Hamilton, Jr., and John C. Calhoun were working, but gave definite assurances that though the former was considered a "noble fellow," he must "throw overboard Mr. Jonas Calhoun" before aid could be expected from Virginia.^[14] Though Virginia had but a few Nullifiers, it was said that she would not "send a man or musket to put down South Carolina" and that a resort to "violent remedies" by the general government might cause her to support South Carolina.^[15]

The majority of the Virginia statesmen, however, seem to have become too much interested in the presidential campaign and the distribution of official plums to share more than a modicum of South Carolina's agitation. Moreover, some believed honestly that the menace of the tariff would soon disappear when the sale of the public lands extinguished the national debt and rendered the tariff unnecessary and even impossible.^[16]

From Alabama came assurances to Washington that the state was sound on the nullification doctrine, in spite of superficial appearances to the contrary in a recent election of a United States senator.^[17] From his own observations Jackson concluded that the few Nullifiers who were in Tennessee would not dare to "hoist their colors."^[18] New York was said to be ready to adopt strong resolutions against nullification.^[19] Even Georgia, it seemed, would disappoint South Carolina in the position she was about to assume.^[20]

1. Messenger, October 10, 1832.
2. Mercury, October 12, 1832; Courier, October 15; Gazette, October 20; Messenger, October 24.
3. Mountaineer, October 27, November 3, 1832; Mercury, October 27; Niles' Register, November 3.
4. Mountaineer, October 30, 1832.
5. Mountaineer, October 27, November 3, 17, 1832; Messenger, November 14; Mercury, November 1, 10; Courier, October 29; Niles' Register, November 10.
6. Mountaineer, October 27, 1832; Courier, November 3.
7. Courier, November 28, 1832; Journal of the Convention of the People of South Carolina assembled at Columbia, November 19, 1832, and again March 11, 1833(published in pamphlet form); see also 22d Congress, 2d session, Document No. 45 of the House; message of the President on the state of the Union, with 14 accompanying documents, January 16, 1833; (1) report of the Committee of Twenty-one to the convention of South Carolina; (2) an ordinance of the convention to nullify certain acts of Congress; (3) address of the convention to the people of South Carolina; (4) address of the convention to the people of the United States; (5) message of Governor Hamilton to the legislature of South Carolina; (6) inaugural address of Governor Hayne to the legislature; (7) an act to carry the ordinance, in part, into effect, called the replevin act; (8) an act to provide for the security and protection of South Carolina; (9) an act concerning the oath required by the ordinance; ( 10) proclamation of the President of the United States; (11) instructions of Secretary McLane to the collector of the customs at Charleston; (12) letter of Secretary McLane to the United States district attorney at Charleston; (13) proclamation by the governor of South Carolina; (14) military orders of the adjutant-general and captain of the Richland Volunteers.
8. Messenger, December 5, 1832.
9. Mercury, December 1, 1832; Gazette, November 30; Mountaineer, December 8.
10. Mercury, January 1, 1833. 22d. Congress, 2d session, House Document No. 45, pp. 70-74.
11. Mercury, January 1, 1833.
12. Mountaineer, December 29, 1832.
13. Poinsett Papers: Drayton to Poinsett, December 31, 1832. Patriot, March 3, 1832; Mountaineer, October 20, November 24, December, 15; Messenger, December 12; Niles' Register, September 1, 15, December 1.
14. Jackson Papers: John Randolph to Jackson, March 1, 18, 28, 1832.
15. Van Buren Papers: Thomas Ritchie to Van Buren, June 25, 1832; Richard E. Parker to Van Buren, September 5.
16. Charles H. Ambler, Thomas Ritchie, chaps, iv and v; Sectionalism in Virginia from 1776 to 1861, chap. vi.
17. Jackson Papers: John Coffee to Jackson, February 24, 1832.
18. Van Buren Papers: Jackson to Van Buren, September 16, 1832.
19. Jackson Papers: James A. Hamilton to Jackson, New York, December 13, 1832.
20. Van Buren Papers: John Forsyth to Van Buren, November 23, 1832.