THE SOUTH CAROLINA NULLIFICATION PROCLAMATION AND NULLIFICATION CRISIS
WASHINGTON, January 16, 1833.
Gentlemen of the Senate and House of Representatives:
In my annual message at the commencement of your present session I adverted
to the opposition to the revenue laws in a particular quarter of the United States, which threatened not merely to thwart
their execution, but to endanger the integrity of the Union; and although I then expressed my reliance that it might be overcome
by the prudence of the officers of the United States and the patriotism of the people, I stated that should the emergency
arise rendering the execution of the existing laws impracticable from any cause whatever prompt notice should be given to
Congress, with the suggestion of such views and measures as might be necessary to meet it.
Events which have occurred in the quarter then alluded to, or which have come
to my knowledge subsequently, present this emergency.
Since the date of my last annual message I have had officially transmitted
to me by the governor of South Carolina, which I now communicate to Congress, a copy of the ordinance passed by the convention which assembled at Columbia, in the State
of South Carolina, in November last, declaring certain acts of Congress therein mentioned within the limits of that State
to be absolutely null and void, and making it the duty of the legislature to pass such laws as would be necessary to carry
the same into effect from and after the 1st February next.
The consequences to which this extraordinary defiance of the just authority
of the Government might too surely lead were clearly foreseen, and it was impossible for me to hesitate as to my own duty
in such an emergency.
The ordinance had been passed, however, without any certain knowledge of the
recommendation which, from a view of the interests of the nation at large, the Executive had determined to submit to Congress,
and a hope was indulged that by frankly explaining his sentiments and the nature of those duties which the crisis would devolve
upon him the authorities of South Carolina might be induced to retrace their steps. In this hope I determined to issue my
proclamation of the 10th of December last, a copy of which I now lay before
I regret to inform you that these reasonable expectations have not been realized,
and that the several acts of the legislature of South Carolina which I now lay before you, and which have all and each of
them finally passed after a knowledge of the desire of the Administration to modify the laws complained of, are too well calculated
both in their positive enactments and in the spirit of opposition which they obviously encourage wholly to obstruct the collection
of the revenue within the limits of that State.
Up to this period neither the recommendation of the Executive in regard to
our financial policy and impost system, nor the disposition manifested by Congress promptly to act upon that subject, nor
the unequivocal expression of the public will in all parts of the Union appears to have produced any relaxation in the measures
of opposition adopted by the State of South Carolina; nor is there any reason to hope that the ordinance and laws will be abandoned.
I have no knowledge that an attempt has been made, or that it is in contemplation,
to reassemble either the convention or the legislature, and it will be perceived that the interval before the 1st of February
is too short to admit of the preliminary steps necessary for that purpose. It appears, moreover, that the State authorities
are actively organizing their military resources, and providing the means and giving the most solemn assurances of protection
and support to all who shall enlist in opposition to the revenue laws.
A recent proclamation of the present governor of South Carolina has openly
defied the authority of the Executive of the Union, and general orders from the headquarters of the State announced his determination
to accept the services of volunteers and his belief that should their country need their services they will be found at the
post of honor and duty, ready to lay down their lives in her defense. Under these orders the forces referred to are directed
to " hold themselves in readiness to take the field at a moment's warning," and in the city of Charleston, within a collection
district, and a port of entry, a rendezvous has been opened for the purpose of enlisting men for the magazine and municipal
guard. Thus South Carolina presents herself in the attitude of hostile preparation, and ready even for military violence if
need be to enforce her laws for preventing the collection of the duties within her limits.
Proceedings thus announced and matured must be distinguished from menaces
of unlawful resistance by irregular bodies of people, who, acting under temporary delusion, may be restrained by reflection
and the influence of public opinion from the commission of actual outrage. In the present instance aggression may be regarded
as committed when it is officially authorized and the means of enforcing it fully provided.
Under these circumstances there can be no doubt that it is the determination
of the authorities of South Carolina fully to carry into effect their ordinance and laws after the first of February. It therefore
becomes my duty to bring the subject to the serious consideration of Congress, in order that such measures as they in their
wisdom may deem fit shall be seasonably provided, and that it may be thereby understood that while the Government is disposed
to remove all just cause of complaint as far as may be practicable consistently with a proper regard to the interests of the
community at large, it is nevertheless determined that the supremacy of the laws shall be maintained.
In making this communication it appears to me to be proper not only that I
should lay before you the acts and proceedings of South Carolina, but that I should also fully acquaint you with those steps
which I have already caused to be taken for the due collection of the revenue, and with my views of the subject generally,
that the suggestions which the Constitution requires me to make in regard to your future legislation may be better understood.
This subject having early attracted the anxious attention of the Executive,
as soon as it was probable that the authorities of South Carolina seriously meditated resistance to the faithful execution
of the revenue laws it was deemed advisable that the Secretary of the Treasury should particularly instruct the officers of
the United States in that part of the Union as to the nature of the duties prescribed by the existing laws.
Instructions were accordingly issued on the 6th of November to the collectors
in that State, pointing out their respective duties and enjoining upon each a firm and vigilant but discreet performance of
them in the emergency then apprehended.
I herewith transmit copies of these instructions and of the letter addressed
to the district attorney, requesting his cooperation. These instructions were dictated in the hope that as the opposition
to the laws by the anomalous proceeding of nullification was represented to be of a pacific nature, to be pursued substantially
according to the forms of the Constitution and without resorting in any event to force or violence, the measures of its advocates
would be taken in conformity with that profession, and on such supposition the means afforded by the existing laws would have
been adequate to meet any emergency likely to arise.
It was, however, not possible altogether to suppress apprehension of the excesses
to which the excitement prevailing in that quarter might lead, but it certainly was not foreseen that the meditated obstruction
to the laws would so soon openly assume its present character.
Subsequently to the date of those instructions, however, the ordinance of
the convention was passed, which, if complied with by the people of the State, must effectually render inoperative the present
revenue laws within her limits.
That ordinance declares and ordains-
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 operation
and effect within the United States, and more especially "An act in alteration of the several acts imposing duties on imports,"
approved on the 19th of May, 1828, and also an act entitled "An act to alter and amend the several acts imposing duties on
imports," approved on the 14th July, 1832, are unauthorized by the Constitution of the United States, and violate the true
intent and meaning thereof, and are null and void and no law, nor binding upon the State of South Carolina, its officers and
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 also ordains-
That it shall not be lawful for any of the constituted authorities, whether
of the State of South Carolina or of the United States, to enforce the payment of duties imposed by the said acts within the
limits of the State, but that it shall be the duty of the legislature to adopt such measures and pass such acts as may be
necessary to give full effect to this ordinance and to prevent the enforcement and arrest the operation of the said acts and
parts of acts of the Congress of the United States within the limits of the State from and after the 1st of February next;
and it shall be the duty of all other constituted authorities and of all other persons residing or being within the limits
of the State, and they are hereby required and enjoined, to obey and give effect to this ordinance and such acts and measures
of the legislature as may be passed or adopted in obedience thereto.
It further ordains-
That in no case of law or equity decided in the courts of the State wherein
shall be drawn in question the authority of this ordinance, or the validity of such act or acts of the legislature as may
be passed for the purpose of giving effect thereto, or the validity of the aforesaid acts of Congress imposing duties, shall
any appeal be taken or allowed to the Supreme Court of the United States, nor shall any copy of the record be permitted or
allowed for that purpose; and the person or persons attempting to take such appeal may be dealt with as for a contempt of
It likewise ordains-
That all persons holding any office of honor, profit, or trust, civil or military,
under the State shall, within such time and in such manner as the legislature shall prescribe, take an oath well and truly
to obey, execute, and enforce this ordinance and such act or acts of the legislature as may be passed in pursuance thereof,
according to the true intent and meaning of the same; and on the neglect or omission of any such person or persons so to do
his or their office or offices shall be forthwith vacated, and shall be filled up as if such person or persons were dead or
had resigned. And no person hereafter elected to any office of honor, profit, or trust, civil or military, shall, until the
legislature shall otherwise provide and direct, enter on the execution of his office or be in any respect competent to discharge
the duties thereof until he shall in like manner have taken a similar oath; and no juror shall be empaneled in any of the
courts of the State in any cause in which shall be in question this ordinance or any act of the legislature passed in pursuance
thereof, unless he shall first, in addition to the usual oath, have taken an oath that he will well and truly obey, execute,
and enforce this ordinance and such act or acts of the legislature as may be passed to carry the same into operation and effect,
according to the true intent and meaning thereof.
The ordinance concludes:
And we, the people of South Carolina, to the end that it may be fully understood
by the Government of the United States and the people of the co-States that we are determined to maintain this ordinance and
declaration at every hazard, 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 the passage by Congress of any act authorizing the
employment of a military or naval force against the State of South Carolina, her constituted authorities or citizens, or any
act abolishing or closing the ports of this State, or any of them, or otherwise obstructing the free ingress and egress of
vessels to and from the said ports, or any other act on the part of the Federal Government to coerce the State, shut up her
ports, destroy or harass 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 thenceforth hold themselves absolved from all further obligation to maintain or preserve their political
connection with the people of the other States, and 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.
This solemn denunciation of the laws and authority of the United States has
been followed up by a series of acts on the part of the authorities of that State which manifest a determination to render
inevitable a resort to those measures of self-defense which the paramount duty of the Federal Government requires, but upon
the adoption of which that State will proceed to execute the purpose it has avowed in this ordinance of withdrawing from the
On the 27th of November the legislature assembled at Columbia, and on their
meeting the governor laid before them the ordinance of the Convention. In his message on that occasion he acquaints them that
"this ordinance has thus become a part of the fundamental law of South Carolina;" that " the die has been at last cast, and
South Carolina has at length appealed to her ulterior sovereignty as a member of this Confederacy and has planted herself
on her reserved rights. The rightful exercise of this power is not a question which we shall any longer argue. It is sufficient
that she has willed it, and that the act is done; nor is its strict compatibility with our constitutional obligation to all
laws passed by the General Government within the authorized grants of power to be drawn in question when this interposition
is exerted in a case in which the compact has been palpably, deliberately, and dangerously violated. That it brings up a conjuncture
of deep and momentous interest is neither to be concealed nor denied. This crisis presents a class of duties which is referable
to yourselves. You have been commanded by the people in their highest sovereignty to take care that within the limits of this
State their will shall be obeyed." "The measure of legislation," he says, "which you have to employ at this crisis is the
precise amount of such enactments as may be necessary to render it utterly impossible to collect within our limits the duties
imposed by the protective tariffs thus nullified. " He proceeds:
That you should arm every citizen with a civil process by which he may claim,
if he pleases, a restitution of his goods seized under the existing imposts on his giving security to abide the issue of a
suit at law, and at the same time define what shall constitute treason against the State, and by a bill of pains and penalties
compel obedience and punish disobedience to your own laws, are points too obvious to require any discussion. In one word,
you must survey the whole ground. You must look to and provide for all possible contingencies. In your own limits your own
courts of judicature must not only be supreme, but you must look to the ultimate issue of any conflict of jurisdiction and
power between them and the courts of the United States.
The governor also asks for power to grant clearances, in violation of the
laws of the Union; and to prepare for the alternative which must happen unless the United States shall passively surrender
their authority, and the Executive, disregarding his oath, refrain from executing the laws of the Union, he recommends a thorough
revision of the militia system, and that the governor " be authorized to accept for the defense of Charleston and its dependencies
the services of 2,000 volunteers, either by companies or files," and that they be formed into a legionary brigade consisting
of infantry, riflemen, cavalry, field and heavy artillery, and that they be " armed and equipped from the public arsenals
completely for the field, and that appropriations be made for supplying all deficiencies in our munitions of war. " In addition
to these volunteer drafts, he recommends that the governor be authorized " to accept the services of 10,000 volunteers from
the other divisions of the State, to be organized and arranged in regiments and brigades, the officers to be selected by the
commander in chief and that this whole force be called the State Guard."
A request has been regularly made of the secretary of state of South Carolina
for authentic copies of the acts which have been passed for the purpose of enforcing the ordinance, but up to the date of
the latest advices that request had not been complied with, and on the present occasion, therefore, reference can only be
made to those acts as published in the newspapers of the State.
The acts to which it is deemed proper to invite the particular attention of
First. "An act to carry into effect, in part, an ordinance to nullify certain
acts of the Congress of the United States purporting to be laws laying duties on the importation of foreign commodities,"
passed in convention of this State, at Columbia, on the 24th November, 1832.
This act provides that any goods seized or detained under pretense of securing
the duties, or for the nonpayment 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 can not 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 to recapture them; and that any person who shall disobey the process or remove the goods, or anyone who shall attempt
to retake or seize the goods under pretense of securing the duties, or for nonpayment of duties, or under any process or decree
contrary to the intent of the ordinance, shall be fined and imprisoned, besides being liable for any other offense 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 may 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 anyone who hires his house as a jail to receive such persons,
shall be fined and imprisoned. 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 into 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 to 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 16 and 60, 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 the 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 State to be executed.
No. 3 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, judiciary, 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 governor and commander in chief, dated the both of December, giving public notice that the services of volunteers will
be accepted under the act already referred to.
If these measures can not be defeated and overcome by the power conferred
by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, 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
thereby 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 burthens, 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 determination 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 protected 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 it is a concession on our part, we will consent
that the same rate of duty may be imposed upon the protected articles that shall be imposed upon the unprotected, provided
that no more revenue 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 " can not 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 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 has 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, and are so directly opposed to the
known opinions and interests of the great body of the American people as to be almost hopeless of attainment. 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 can not be permitted to decide what these 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 difficulty 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 1st 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, that 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 can not 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 permitting 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 to 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 anal 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, can not 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 is expressly formed to attain.
Against all acts which may be alleged to transcend the constitutional power
of the 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 submission.
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, needs 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 preexist and
can not 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 identified with those
of the community of which he is a member. In compacts between individuals, however deeply they may affect their relations,
these principles are acknowledged to create a sacred obligation; and in compacts of civil government, involving the liberties
and happiness of millions of mankind, the obligation can not 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 inquiring 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 thereof, respectively, have bound themselves to each other and to the Federal Government, and by which
the Federal Government is bound to the several States and to every citizen of the United States." To this compact, in whatever
mode it may have been done, the people of South Carolina have freely and voluntarily given their assent, and to the whole
and every part of it they are, upon every principle of good faith, inviolably bound. Under this obligation they are bomb and
should be required to contribute their portion of the public expense, and to submit to all laws made by the common consent,
in pursuance of the Constitution, for the common defense and general welfare, until they can be changed in the mode which
the compact has provided for the attainment of those great ends of the Government and of the Union. Nothing less than causes
which would justify revolutionary remedy can absolve the people from this obligation, and for nothing less can the Government
permit it to be done without violating its own obligations, by which, under the compact, it is bound to the other States and
to every citizen of the United States.
These deductions plainly flow from the nature of the federal compact, which
is one of limitations, not only upon the powers originally possessed by the parties thereto, but also upon those conferred
on the Government and every department thereof. It will be freely conceded that by the principles of our system all power
is vested in the people, but to be exercised in the mode and subject to the checks which the people themselves have prescribed.
These checks are undoubtedly only different modifications of the same great popular principle which lies at the foundation
of the whole, but are not on that account to be less regarded or less obligatory.
Upon the power of Congress, the veto of the Executive and the authority of
the judiciary, which is to extend to all cases in law- and equity arising under the Constitution
and laws of the United States made in pursuance thereof, are the obvious checks, and the sound action of public opinion, with
the ultimate power of amendment, are the salutary and only limitation upon the powers of the whole.
However it may be alleged that a violation of the compact by the measures
of the Government can affect the obligations of the parties, it can not even be pretended that such violation can be predicated
of those measures until all the constitutional remedies shall have been fully tried. If the Federal Government exercise powers
not warranted by the Constitution, and immediately affecting individuals, it will scarcely be denied that the proper remedy
is a recourse to the judiciary. Such undoubtedly is the remedy for those who deem the acts of Congress laying duties and imposts,
and providing for their collection, to be unconstitutional. The whole operation of such laws is upon the individuals importing
the merchandise. A State is absolutely prohibited from laying imposts or duties on imports or exports without the consent
of Congress, and can not become a party under these laws without importing in her own name or wrongfully interposing her authority
against them. By thus interposing, however, she can not rightfully obstruct the operation of the laws upon individuals. For
their disobedience to or violation of the laws the ordinary remedies through the judicial tribunals would remain. And in a
case where an individual should be prosecuted for any offense against the laws, he could not set up in justification of his
act a law of the State, which, being unconstitutional, would therefore be regarded as null and void. The law of a State can
not authorize the commission of a crime against the United States or any other act which, according to the supreme law of
the Union, would be otherwise unlawful; and it is equally clear that if there be any case in which a State, as such, is affected
by the law beyond the scope of judicial power, the remedy consists in appeals to the people, either to effect a change in
the representation or to procure relief by an amendment of the Constitution. But the measures of the Government are to be
recognized as valid, and consequently supreme, until these remedies shall have been effectually tried, and any attempt to
subvert those measures or to render the laws subordinate to State authority, and afterwards to resort to constitutional redress,
is worse than evasive. It would not be a proper resistance to "a government of unlimited powers," as has been sometimes
pretended, but unlawful opposition to the very limitations on which the harmonious action of the Government and all its parts
absolutely depends. South Carolina has appealed to none of these remedies, but in effect has defied them all. While threatening
to separate from the Union if any attempt be made to enforce the revenue laws otherwise than through the civil tribunals of
the country, she has not only not appealed in her own name to those tribunals which the Constitution
has provided for all cases in law or equity arising under the Constitution
and laws of the United States, but has endeavored to frustrate their proper action on her citizens by drawing the cognizance
of cases under the revenue laws to her own tribunals, specially prepared and fitted for the purpose of enforcing the acts
passed by the State to obstruct those laws, and both the judges and jurors of which will be bound by the import of oaths previously
taken to treat the Constitution and laws of the United States in this
respect as a nullity. Nor has the State made the proper appeal to public opinion and to the remedy of amendment; for without
waiting to learn whether the other States will consent to a convention, or if they do will construe or amend the Constitution to suit her views, she has of her own authority altered the import of that instrument
and given immediate effect to the change. In fine, she has set her own will and authority above the laws, has made herself
arbiter in her own cause, and has passed at once over all intermediate steps to measures of avowed resistance, which, unless
they be submitted to, can be enforced only by the sword.
In deciding upon the course which a high sense of duty to all the people of
the United States imposes upon the authorities of the Union in this emergency, it can not be overlooked that there is no sufficient
cause for the acts of South Carolina, or for her thus placing in jeopardy the happiness of so many millions of people. Misrule
and oppression, to warrant the disruption of the free institutions of the Union of these States, should be great and lasting,
defying all other remedy. For causes of minor character the Government could not submit to such a catastrophe without a violation
of its most sacred obligations to the other States of the Union who have submitted their destiny to its hands.
There is in the present instance no such cause, either in the degree of misrule
or oppression complained of or in the hopelessness of redress by constitutional means. The long sanction they have received
from the proper authorities and from the people, not less than the unexampled growth and increasing prosperity of so many
millions of freemen, attest that no such oppression as would justify, or even palliate, such a resort can be justly imputed
either to the present policy or past measures of the Federal Government.
The same mode of collecting duties, and for the same general objects, which
began with the foundation of the Government, and which has conducted the country through its subsequent steps to its present
enviable condition of happiness and renown, has not been changed. Taxation and representation, the great principle of the
American Revolution, have continually gone hand in hand, and at all times and in every instance no tax of any kind has been
imposed without their participation, and, in some instances which have been complained of, with the express assent of a part
of the representatives of South Carolina in the councils of the Government. Up to the present period no revenue has been raised
beyond the necessary wants of the country and the authorized expenditures of the Government; and as soon as the burthen of
the public debt is removed those charged with the administration have promptly recommended a corresponding reduction of revenue.
That this system thus pursued has resulted in no such oppression upon South
Carolina needs no other proof than the solemn and official declaration of the late chief magistrate of that State in his address
to the legislature. In that he says that-
The occurrences of the past year, in connection with our domestic concerns,
are to be reviewed with a sentiment of fervent gratitude to the Great Disposer of Human Events; that tributes of grateful
acknowledgment are due for the various and multiplied blessings He has been pleased to bestow on our people; that abundant
hat. vests in every quarter of the State have crowned the exertions of agricultural labor that health almost beyond former
precedent has blessed our homes, and that there is not less reason for thankfulness in surveying our social condition.
It would indeed be difficult to imagine oppression where in the social condition
of a people there was equal cause of thankfulness as for abundant harvests and varied and multiplied blessings with which
a kind Providence had favored them.
Independently of these considerations, it will not escape observation that
South Carolina still claims to be a component part of the Union, to participate in the national councils and to share in the
public benefits without contributing to the public burdens, thus asserting the dangerous anomaly of continuing in an association
without acknowledging any other obligation to its laws than what depends upon her own will.
In this posture of affairs the duty of the Government seems to be plain. It
inculcates a recognition of that State as a member of the Union and subject to its authority, a vindication of the just power
of the Constitution, the preservation of the integrity of the Union, and the execution of the laws by all constitutional means.
The Constitution, which his oath of office obliges him to support, declares
that the Executive "shall take care that the laws be faithfully executed," and in providing that he shall from time
to time give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall
judge necessary and expedient, imposes the additional obligation of recommending to Congress such more efficient provision
for executing the laws as may from time to time be found requisite.
The same instrument confers on Congress the power not merely to lay and collect
taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare, but " to make
all laws which shall be necessary and proper for carrying into effect the foregoing powers and all other powers vested by
the Constitution in the Government of the United States or in any department
or officer thereof," arid also to provide for calling forth the militia for executing the laws of the Union. In all cases
similar to the present the duties of the Government become the measure of its powers, and whenever it fails to exercise a
power necessary and proper to the discharge of the duty prescribed by the Constitution it violates the public trusts not less
than it would in transcending its proper limits. To refrain, therefore, from the high and solemn duties thus enjoined, however
painful the performance may be, and thereby tacitly permit the rightful authority of the Government to be contemned and its
laws obstructed by a single State, would neither comport with its own safety nor the rights of the great body of the American
It being thus shown to be the duty of the Executive to execute the laws by
all constitutional means, it remains to consider the extent of those already at his disposal and what it may be proper further
In the instructions of the Secretary of the Treasury to the collectors in
South Carolina the provisions and regulations made by the act of 1799, and also the fines, penalties, and forfeitures for
their enforcement, are particularly detailed and explained. It may be well apprehended, however, that these provisions may
prove inadequate to meet such an open, powerful, organized opposition as is to be commenced after the 1st of February next.
Subsequently to the date of these instructions and to the passage of the ordinance,
information has been received from sources entitled to be relied on that owing to the popular excitement in the State and
the effect of the ordinance declaring the execution of the revenue laws unlawful a sufficient number of persons in whom confidence
might be placed could not be induced to accept the office of inspector to oppose with any probability of success the force
which will no doubt be used when an attempt is made to remove vessels and their cargoes from the custody of the officers of
the customs, and, indeed, that it would be impracticable for the collector, with the aid of any number of inspectors whom
he may be authorized to employ, to preserve the custody against such an attempt.
The removal of the custom-house from Charleston to Castle Pinckney was deemed
a measure of necessary precaution, and though the authority to give that direction is not questioned, it is nevertheless apparent
that a similar precaution can not be observed in regard to the ports of Georgetown and Beaufort, each of which under the present
laws remains a port of entry and exposed to the obstructions meditated in that quarter.
In considering the best means of avoiding or of preventing the apprehended
obstruction to the collection of the revenue, and the consequences which may ensue, it would appear to be proper and necessary
to enable the officers of the customs to preserve the custody of vessels and their cargoes, which by the existing laws they
are required to take, until the duties to which they are liable shall be paid or secured. The mode by which it is contemplated
to deprive them of that custody is the process of replevin and that of capias in withernam, in the nature of a distress
from the State tribunals organized by the ordinance.
Against the proceeding in the nature of a distress it is not perceived that
the collector can interpose any resistance whatever, and against the process of replevin authorized by the law of the State
he, having no common-law power, can only oppose such inspectors as he is by statute authorized and may find it practicable
to employ, and these, from the information already adverted to, are shown to be wholly inadequate.
The respect which that process deserves must therefore be considered.
If the authorities of South Carolina had not obstructed the legitimate action
of the courts of the United States, or if they had permitted the State tribunals to administer the law according to their
oath under the Constitution and the regulations of the laws of the Union, the General Government might have been content to
look to them for maintaining the custody and to encounter the other inconveniences arising out of the recent proceedings.
Even in that case, however, the process of replevin from the courts of the State would be irregular and unauthorized. It has
been decided by the Supreme Court of the United States that the courts of the United States have exclusive jurisdiction of
all seizures made on land or water for a breach of the laws of the United States, and any intervention of a State authority
which, by taking the thing seized out of the hands of the United States officer, might obstruct the exercise of this jurisdiction
is unlawful; that in such case the court of the United States having cognizance of the seizure may enforce a redelivery of
the thing by attachment or other summary process; that the question under such a seizure whether a forfeiture has been actually
incurred belongs exclusively to the courts of the United States, and it depends on the final decree whether the seizure is
to be deemed rightful or tortuous; and that not until the seizure be finally judged wrongful and without probable cause by
the courts of the United States can the party proceed at common law for damages in the State courts.
But by making it " unlawful for any of the constituted authorities, whether
of the United States or of the State, to enforce the laws for the payment of duties, and declaring that all judicial proceedings
which shall be hereafter had in affirmance of the contracts made with purpose to secure the duties imposed by the said acts
are and shall be held utterly null and void," she has in effect abrogated the judicial tribunals within her limits in this
respect, has virtually denied the United States access to the courts established by their own laws, and declared it unlawful
for the judges to discharge those duties which they are sworn to perform. In lieu of these she has substituted those State
tribunals already adverted to, the judges whereof are not merely forbidden to allow an appeal or permit a copy of their record,
but are previously sworn to disregard the laws of the Union and enforce those only of South Carolina, and thus deprived of
the function essential to the judicial character of inquiring into the validity of the law and the right of the matter, become
merely ministerial instruments in aid of the concerted obstruction of the laws of the Union.
Neither the process nor authority of these tribunals thus constituted can
be respected consistently with the supremacy of the laws or the rights and security of the citizen. If they be submitted to,
the protection due from the Government to its officers and citizens is withheld, and there is at once an end not only to the
laws, but to the Union itself.
Against such a force as the sheriff may, and which by the replevin law of
South Carolina it is his duty to exercise, it can not be expected that a collector can retain his custody with the aid of
the inspectors. In such case, it is true, it would be competent to institute suits in the United States courts against those
engaged in the unlawful proceeding, or the property might be seized for a violation of the revenue laws, and, being libeled
in the proper courts, an order might be made for its redelivery, which would be committed to the marshal for execution. But
in that case the fourth section of the act, in broad and unqualified terms, makes it the duty of the sheriff "to prevent such
recapture or seizure, or to redeliver the goods, as the case may be," "even under any process, order, or decrees, or other
pretext contrary to the true intent and meaning of the ordinance aforesaid." It is thus made the duty of the sheriff to oppose
the process of the courts of the United States, and for that purpose, if need be, to employ the whole power of the county.
And the act expressly reserves to him all power which, independently of its provisions, he could have used. In this reservation
it obviously contemplates a resort to other means than those particularly mentioned.
It is not to be disguised that the power which it is thus enjoined upon the
sheriff to employ is nothing less than the posse comitatus in all the rigor of the ancient common law. This power,
though it may be used against unlawful resistance to judicial process, is in its character forcible, and analogous to that
conferred upon the marshals by the act of 1795. It is, in fact, the embodying of the whole mass of the population, under the
command of a single individual, to accomplish by their forcible aid what could not be effected peaceably and by the ordinary
means. It may properly be said to be a relic of those ages in which the laws could be defended rather by physical than moral
force, and in its origin was conferred upon the sheriffs of England to enable them to defend their county against any of the
King's enemies when they came into the land, as well as for the purpose of executing process. In early and less civilized
times it was intended to include the aid and attendance of all knights and others who were bound to have harness. " It includes
the right of going with arms and military equipment, and embraces larger classes and greater masses of population than can
be compelled by the laws of most of the States to perform militia duty. If the principles of the common law are recognized
in South Carolina (and from this act it would seem they are), the power of summoning the posse comitatus will compel,
under the penalty of fine and imprisonment, every man over the age of It, and able to travel, to turn out at the call of the
sheriff, and with such weapons as may be necessary; and it may justify beating, and even killing, such as may resist. The
use of the Posse comitatus is therefore a direct application of force, and can not be otherwise regarded than as the
employment of the whole militia force of the county, and in an equally efficient form under a different name. No proceeding
which resorts to this power to the extent contemplated by the act can be properly denominated peaceable.
The act of South Carolina, however, does not rely altogether upon this forcible
remedy. For even attempting to resist or disobey, though by the aid only of the ordinary officers of the customs, the process
of replevin, the collector and all concerned are subjected to a further proceeding in the nature of a distress of their personal
effects, and are, moreover, made guilty of a misdemeanor, and liable to be punished by a fine of not less than $1,000 nor
more than $5,000 and to imprisonment not exceeding two years and not less than six months; and for even attempting to execute
the order of the court for retaking the property the marshal and all assisting would be guilty of a misdemeanor and liable
to a fine of not less than $3,000 nor more than $10,000 and to imprisonment not exceeding two years nor less than one; and
in case the goods should be retaken under such process it is made the absolute duty of the sheriff to retake them.
It is not to be supposed that in the face of these penalties, aided by the
powerful force of the county, which would doubtless be brought to sustain the State officers, either that the collector would
retain the custody in the first instance or that the marshal could summon sufficient aid to retake the property pursuant to
the order or other process of the court.
It is, moreover, obvious that in this conflict between the powers of the officers
of the United States and of the State (unless the latter be passively submitted to) the destruction to which the property
of the officers of the customs would be exposed, the commission of actual violence, and the loss of lives would be scarcely
Under these circumstances and the provisions of the acts of South Carolina
the execution of the laws is rendered impracticable even through the ordinary judicial tribunals of the United States. There
would certainly be fewer difficulties, and less opportunity of actual collision between the officers of the United States
and of the State, and the collection of the revenue would be more effectually secured-if, indeed, it can be done in any other
way-by placing the custom-house beyond the immediate power of the county.
For this purpose it might be proper to provide that whenever by any unlawful
combination or obstruction in any State or in any port it should become impracticable faithfully to collect the duties, the
President of the United States should be authorized to alter and abolish such of the districts and ports of entry as should
be necessary, and to establish the custom-house at some secure place within some port or harbor of such State, and in such
cases it should be the duty of the collector to reside at such place, and to detain all vessels and cargoes until the duties
imposed by law should be properly secured or paid in cash deducting interest; that in such cases it should be unlawful to
take the vessel and cargo from the custody of the proper officer of the customs unless by process from the ordinary judicial
tribunals of the United States, and that in case of an attempt otherwise to take the property by a force too great to be overcome
by the officers of the customs it should be lawful to protect the possession Of the officers by the employment of the land
and naval forces and militia, under provisions similar to those authorized by the eleventh section of the act of the 8th of
This provision, however, would not shield the officers and citizens of the
United States, acting under the laws, from suits and prosecutions in the tribunals of the State which might thereafter be
brought against them, nor would it protect their property from the proceeding by distress, and it may well be apprehended
that it would be insufficient to insure a proper respect to the process of the constitutional tribunals in prosecutions for
offenses against the United States and to protect the authorities of the United States, whether judicial or ministerial, in
the performance of their duties. It would, moreover, be inadequate to extend the protection due from the Government to that
portion of the people of South Carolina against outrage and oppression of any kind who may manifest their attachment and yield
obedience to the laws of the Union.
It may therefore be desirable to revive, with some modifications better adapted
to the occasion, the sixth section of the act of the 3d March, 1815, which expired on the 4th March, 1817, by the limitation
of that of 27th April, 1816, and to provide that in any case where suit shall be brought against any individual in the courts
of the State for any act done under the laws of the United States he should be authorized to remove the said cause by petition
into the circuit court of the United States without any copy of the record, and that the court should proceed to hear and
determine the same as if it had been originally instituted therein; and that in all cases of injuries to the persons or property
of individuals for disobedience to the ordinance and laws of South Carolina in pursuance thereof redress may be sought in
the courts of the United States. It may be expedient also, by modifying the resolution of the 3d March, 1791, to authorize
the marshals to make the necessary provision for the safe-keeping of prisoners committed under the authority of the United
Provisions less than these, consisting as they do for the most part rather
of a revival of the policy of former acts called for by the existing emergency than of the introduction of any unusual or
rigorous enactments, would not cause the laws of the Union to be properly respected or enforced. It is believed these would
prove adequate unless the military forces of the State of South Carolina authorized by the late act of the legislature should
be actually embodied and called out in aid of their proceedings and of the provisions of the ordinance generally. Even in
that case, however, it is believed that no more will be necessary than a few modifications of its terms to adapt the act of
1795 to the present emergency, as by that act the provisions of the law of 1792 were accommodated to the crisis then existing,
and by conferring authority upon the President to give it operation during the session of Congress, and without the ceremony
of a proclamation, whenever it shall be officially made known to him by the authority of any State, or by the courts of the
United States, that within the limits of such State the laws of the United States will be openly opposed and their execution
obstructed by the actual employment of military force, or by any unlawful means whatsoever too great to be otherwise overcome.
In closing this communication, I should do injustice to my own feelings not
to express my confident reliance upon the disposition of each department of the Government to perform its duty and to cooperate
in all measures necessary in the present emergency.
The crisis undoubtedly invokes the fidelity of the patriot and the sagacity
of the statesman, not more in removing such portion of the public burden as may be necessary than in preserving the good order
of society and in the maintenance of well-regulated liberty.
While a forbearing spirit may, and I trust will, be exercised toward the errors
of our brethren in a particular quarter, duty to the rest of the Union demands that open and organized resistance to the laws
should not be executed with impunity.
The rich inheritance bequeathed by our fathers has devolved upon us the sacred
obligation of preserving it by the same virtues which conducted them through the eventful scenes of the Revolution and ultimately
crowned their struggle with the noblest model of civil institutions. They bequeathed to us a Government of laws and a Federal
Union founded upon the great principle of popular representation. After a successful experiment of forty-four years, at a
moment when the Government and the Union are the objects of the hopes of the friends of civil liberty throughout the world,
and in the midst of public and individual prosperity unexampled in history, we are called to decide whether these laws possess
any force and that Union the means of self-preservation. The decision of this question by an enlightened and patriotic people
can not be doubtful. For myself, fellow-citizens, devoutly relying upon that kind Providence which has hitherto watched over
our destinies, and actuated by a profound reverence for those institutions I have so much cause to love, and for the American
people, whose partiality honored me with their highest trust, I have determined to spare no effort to discharge the duty which
in this conjuncture is devolved upon me. That a similar spirit will actuate the representatives of the American people is
not to be questioned; and I fervently pray that the Great Ruler of Nations may so guide your deliberations and our joint measures
as that they may prove salutary examples not only to the present but to future times, and solemnly proclaim that the Constitution
and the laws are supreme and the Union indissoluble.
Source: A Compilation of the Messages and Papers of the Presidents, Prepared under the direction of the
Joint Committee on printing, of the House and Senate, Pursuant to an Act of the Fifty-Second Congress of the United States.
New York : Bureau of National Literature, Inc., 1897; Yale Law School, The Avalon Project
Advance to: President Andrew Jackson: Nullification Proclamation and the Nullification