Part 42

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 Union.

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 Congress are:

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. 9 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 20th 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.