power of the Supreme Court of the United States to determine finally as to the constitutionality of a State statute or act of Congress had been intentionally granted by the Convention; and its exercise had been repeated.13 In one case such a decision had been enforced with the approval of President Madison against the militia of a State, called out to support an act of the State legislature directing resistance to the judgment; the State militia-men had been tried and convicted for their obedience to the State Statute; 14 and when the State legislature recommended a constitutional amendment to provide an umpire for future conflicts between State and Federal authorities, no other State concurred, and the legislature of Virginia unanimously voted: "That a tribunal is already provided by the Constitution of the United States, to wit the Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of office, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal that could be created." 15 - this from being consistent with republican principles, that it is, in effect, the worst species of monarchy. Hence we see how necessary for the Union is the coercive principle. No man pretends the contrary; we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms?" "I am for coercion by law that coercion which acts only upon delinquent individuals." "This legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union." Elliot's Debates, 2d ed., vol. v, p. 197. In the same speech Ellsworth speaks of the power of "the national judges to declare void an act of Congress not authorized by the Constitution." Ibid., p. 196. See also the authorities cited supra, § 17. 13 U. S. v. Peters, 5 Cranch, p. 115, A. D. 1808; Martin v. Hunter's Lessee, 1 Wheaton, p. 304, A. D. 1816; Cohens v. Virginia, 6 Wheaton, p. 304, A. D. 1821. The history of this subject will be discussed subsequently in the chapter on the Judicial Power. 14 This was the famous case of the sloop Active. Journals of Congress, vol. v, p. 372; Ross et al. v. Rittenhouse, 2 Dallas, p. 160, A. D. 1792; U. S. v. Peters, 5 Cranch, p. 115, A.D. 1808; Trial of General Bright by Richard Peters; The whole Proceedings in the case of Olmstead v. Rittenhouse, Philadelphia, 1809; Olmsted's Case, Brightby (Pa.), 1; The case of the Sloop Active by Hampton L. Carson, The Green Bag, vol. vii, p. 17; Carson, History of the Supreme Court of the United States, vol. i, p. 213. 15 Extract from the journal of the Senate of the Commonwealth of Virginia, begun and held at the Capitol in the City of Richmond, the fourth day of December, 1809: "Friday January 26, 1810; "Mr. Nelson reported from the committee to whom were committed the preamble and resolutions on the amendment proposed by the legisla The doctrine of nullification can find no support in the language of the Constitution. It is in direct conflict with the spirit and ture of Pennsylvania, to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the state and federal judiciary, that the committee had, according to order, taken the said preambles and resolutions under their consideration, and directed him to report them without any amendment. And on this question being put thereupon, the same were agreed to unanimously, by the House, as follows: "The committee to whom was referred the communication of the Governor of Pennsylvania, covering certain resolutions of the legislature of that State, proposing an amendment to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the State and federal judiciary, have had the same under their consideration, and are of opinion that a tribunal is already provided by the constitution of the United States, to wit: The Supreme Court, more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be created. The members of the Supreme Court are selected from those in the United States, who are most celebrated for virtue and legal learning, not at the will of a single individual, but by the concurrent wishes of the President and Senate of the United States; they will therefore have no local prejudices and partialities. The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal, and several State courts, to gether with the admirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality. The amendment to the constitution proposed by Pennsylvania, seems to be founded upon the idea that the federal judiciary will, from a lust of power, enlarge their jurisdiction, to the total annihilation of the jurisdiction of the state courts; that they will exercise their will instead of the law and the constitution. This argument, if it proves anything, would operate more strongly against the tribunal proposed to be created, which promises so little, than against the Supreme Court, which for the reasons given before, have everything connected with their appointment calculated to insure confidence. What security have we, were the proposed amendment adopted, that this tribunal would not substitute their will and their pleasure in place of the law? The judiciary are the weakest of the three departments of government, and least dangerous to the political rights of the constitution. They hold neither the purse nor the sword; and even to enforce their own judgments and decrees, must ultimately depend upon the executive arm. Should the federal judiciary, however, unmindful of their weakness, unmindful of their duty which they owe to themselves and their country, become corrupt and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier to such an improbable state of things? The creation of a tribunal such as is proposed by Pennsylvania, so far as we are enabled to form an idea of it, from the description given in the res letter as well as the expressed intentions of the framers of that instrument and the precedents of half a century before its promulgation. Had it been recognized as a part of our system of government, it would have been as fatal as was the liberum veto in the Polish Diet; the United States would have long since suffered a partition; and the cause of civil liberty throughout the world would have met with a reverse from which it could not have recovered within the century. But although it is hard to believe that a mind so acute as that of Calhoun could have been the dupe of its own sophistry, no lawyer can fail to admire the ingenuity with which was framed his scheme for resistance to the tariff, and he well earned his reputation as a statesman by the practical result which he obtained. § 34. History of Nullification. The Tariff of Abominations of 1828 1 bore with especial severity upon the South, where there were no manufacturers who desired olutions of the legislature of that state, would, in the opinion of your committee, tend rather to invite than prevent a collision between the federal and state courts. It might also become in process of time a serious and dangerous embarrassment to the operations of the general govern ment. · Resolved, therefore, that the legislature of this state do disapprove of the amendment to the constitution of the United States proposed by the legislature of Pennsylvania. "Resolved also, that his Excellency the Governor be, and is hereby requested to transmit forthwith, a copy of the foregoing preamble and resolutions to each of the senators and representatives of this state in Congress and to the executive of the several states in the Union and request that the same be laid before the legislatures thereof." Extract from the journal of the House of Delegates of the Commonwealth of Virginia : "Tuesday Jan 23, 1810; "The House according to the order of the day, resolved itself into a committee of the whole house on the state of the commonwealth and after some time spent therein Mr. Speaker resumed the chair and Mr. Robert Stanard reported that the committee had according to order, had under consideration the preamble and resolutions of the select committee to whom were referred that part of the Governor's communication which relates to the amendment proposed to the constitution of the United States, by the legislature of Pennsylvania, had gone through the same, and directed him to report them to the House without amendment; which he handed in at the clerk's table, and the question being put on agreeing to the said preamble and resolutions, they were agreed to by the House unanimously." Pinckney's argument in Cohens v. Virginia, 6 Wheaton, 264, 358, note. § 34. 1 Act of May 19, 1828, 4 St. at L., p. 240. protection. While it was before Congress, the legislatures of several Southern States passed resolutions declaring the unconstitutionality of a tariff for purposes of protection; and at the same time attacking appropriations for internal improvements and the American Colonization Society.2 At a public dinner in the autumn of 1827, Colonel Hamilton of South Carolina, afterwards Governor of the State, proposed nullification as a remedy.3 In the winter of 1828 and 1829, after the new tariff was in force, the Southern States again passed similar resolutions. South Carolina sent to the Senate its famous "Exposition and Protest" against the tariff. The legislature of Georgia resolved that the State had the unquestionable right "to refuse obedience to any measure of the General Government manifestly against, and in violation of, the Constitution."5 Meanwhile, threats of nullification were continuous, and the doctrine was maintained and combatted during December, 1829, in the great debate between Webster and Hayne. On April 13th, 1830, Jefferson's birthday was celebrated by a subscription dinner at Washington, with the President, Vice-President and Cabinet among the guests. The twenty-four regular toasts savored of the new doctrine of nullification. At their conclusion, Jackson was called upon for a volunteer, and gave utterance to his famous sentiment: "Our Federal Union; it must be preserved." The Vice-President, Calhoun, followed with another: 2 Sumner's Jackson, pp. 215, 216; 3 American Annual Reg., p. 64; Georgia Laws of 1827, pp. 194-214; North Carolina, South Carolina, and Alabama also resolved against the constitutionality of the tariff. According to Professor Sumner (p. 216), who cites as his authority 3 American Annual Register, 64, Georgia affirmed the right of secession. The resolutions, however, nowhere expressly affirm the right of secession, although a threat of secession is intimated. 8 Sumner's Jackson, p. 212. 4 These were drafted by Calhoun, and adopted with some alterations. The original draft of the "public exposition of our wrongs and the remedies within our power to be communicated to our sister States," and the resolutions containing the protest as The Virginia legislature, on Feb. 24, 5 Georgia Laws of 1828, p. 175. "The Union: next to our Liberty the most dear: may we all remember that it can only be preserved by respecting the rights of the States, and distributing equally the benefit and burthen of the Union." The Secretary of State, Van Buren, then gave: "Mutual forbearance and reciprocal concession: through their tendency the Union was established. The patriotic spirit from which they emanated will forever sustain it."7 In November of the same year, a bill to call a State Convention failed to obtain the necessary two-thirds vote in the legislature of South Carolina.9 The followers of Crawford, in Georgia, had rallied and prevented any attempt at nullification there.10 During the year 1831, an attempt was made in the United States District Court of South Carolina to test the constitutionality of the tariff by a refusal to pay duty bonds, and a plea of no consideration; but the court refused to hear evidence on the point, and the scheme failed.11 Meanwhile, threats of nullification continued from South Carolina. Jackson, in a letter to a committee of citizens of Charleston declining an invitation to attend the Fourth of July celebration there, intimated that force would be applied to collect the obnoxious duties.12 Calhoun followed in an address "stating his opinion of the relation which the States and general government bear to each other." 13 The twenty-second Congress met December 5th, and an attempt to revise the tariff immediately began. Twelve days later the legislature of South Carolina passed an act suspending the act for the election of members of Congress and directing the managers of the next general election not to open polls for representatives in Congress.14 The new tariff, which was signed July 14th, 1832, but was not to take effect till the following March, modified some of the abuses in the act of 1828, but still maintained the protective system and the consequent injury to the Southern States. The day before its signature a majority of the South Carolina delegation issued a manifesto Benton's Thirty Years' View, vol. i, p. 148. 7 Shepard's Life of Martin Van Buren, p. 161. Nov. 22, 1830. Sumner's Jackson, p. 219. 10 Ibid., p. 216. 11 Ibid., pp. 219, 220; 7 American Annual Register, p. 34. 12 Sumner's Jackson, p. 220. 14 Dec. 17, 1831; Laws of 1831, ch. 821, repealed Dec. 20, 1832; Laws of 1832, ch. 18. |