386

CONSTITUTIONALITY OF A PROTECTIVE TARIFF.

The question of the constitutionality of protective tariff was raised in 1789 and again in 1816, but it was first exhaustively discussed in the debates on the tariff of 1824.1 The National Republicans, under the leadership of Clay, advocated the principle of protection and found support for their arguments in the liberal construction of the Constitution, which characterized the decision of the Supreme Court under Marshall.2 The whole matter of laying a tax, they claimed, was one of discretion with Congress. Moderate protectionists, of whom Webster at this time was one, held that the whole question was one of expediency. He feared that if protection was carried too far commerce would be destroyed. The advocates of a tariff act of which the distinctive feature would be its revenue clause, preferred the opinion which Webster had uttered in 1820, that Congress has no power to determine what occupations society should follow and what it should abandon. They held that the rightful power of Congress to levy a tax went no further than to raise money necessary for the lawful purposes of the government. If the right to pass a tariff act depended wholly on expediency, its exercise would cease to respond to the necessities of the people, but would be determined by politics only. The attitude of parties over the tariff of 1824, did not materially change in later times. The National RepubliCongress, Second Session, III, No. 112, pp. 7, 9: Hayes's Special Message, March 8, 1880, Richardson, VII, 585: Secretary Blaine to Minister Morgan, June 1, 1881, Wharton's Digest, I, 331: to Minister Lowell, November 19, 1881, Id., II, 212: to Minister Trescot, December 1, 1881, Wharton's Digest, I, 344: Secretary Frelinghuysen to Trescot, January 9, 1882, Id.: to Minister Reid, January 4, 1883, Id., 295; Harrison's Inaugural, March 4, 1889, Richardson, IX, 10.

1 Act of May 22, 1824; Statutes at Large, IV, 25.

2 Gibbons vs. Ogden; 9 Wheaton, 1 (1824.)

3 Works, III 94; Speech of April 1 and 2, 1824.

THE COMING OF JACKSON.

387

cans grounded their faith in the matter of national expediency and a liberal construction of the Constitution. Finding a well made up creed in that celebrated report on American manufactures, which Hamilton, while Secretary of the Treasury, made to Congress in 1791. The Democrats, following the letter of the Constitution, stood substantially on the same ground which Jefferson had taken when he opposed chartering the first United States bank. The tariff of 1828, styled by its enemies, the tariff of abominations, reopened the whole controversy of the power of Congress to levy taxes, and was the immediate cause of a great struggle and ultimately of a great compromise which followed.

Jackson came to the Presidency in 1829, convinced that he was the chosen of the people to institute great public reforms.1 His inauguration occurred amidst the debate over the tariff. He left no one in doubt of his own understanding of the method in which the revenue should be raised and distributed. It should be done, he said, without discrimination against any great interest in the country, and he was careful to draw a parallel between this nice balance of administration and the distinction between the rights of what he called the sovereign members of the Union and the powers which they had granted to the Confederacy; for the States were still considered sovereign, and the Union was still called a Confederacy. Jackson professed to take a strict construction view of executive powers. The President should administer the laws. The tariff act of 1828 was scarcely in the statute books before vociferous protests were heard from various quarters. Five Southern States pronounced it destructive of the best interests of their people.2 Protests of this kind had 1 Inaugural, March 4, 1829; Richardson, II, 436.

2 Georgia, Alabama, North Carolina, South Carolina and Virginia, 1828-29; reprinted in Elliot's pamphlets.

388

ECONOMIC CONDITIONS.

often been heard. New England had uttered them against the treaty of 1803. The Hartford Convention had expostulated against the war of 1812, and the policy of the administration which conducted it. Long before this, Georgia had set a precedent for such protests, when in 1794, it refused to abide by the decision in the Chisholm case. And again thirty-five years later, when it refused to sustain the decision of the Supreme Court in the case of the Creek and Cherokee Indians.1 But the ground of protest against the tariff of 1828, was much firmer than that on which these earlier precedents rested. The economic condition of the country had changed, the South had continued agricultural, the North was becoming manufacturing. Whatever prosperity might follow a protective tariff, therefore, the South inclined to believe, would attach to Northern interests, while the South would be taxed for its prosperity. The law, therefore, according to Southern protest, was a discrimination against a large section of the Union. On this economic interpretation of the tariff of 1828, rested the whole case of nullification. It must not be understood that the South stood alone in its opposition to the tariff. Low tariff, anti-tariff and free trade opinions were heard here and there all through the North, and found means of utterance in innumerable meetings, which varying in their degrees of influence, straightway proclaimed their hostility to a tariff, usually through pamphlets and the journals of their proceedings.2

1 Worcester vs. State of Georgia, 6 Peters, 515; Niles Register, XXXVI, 258; XXXVII, 189; XLIII, 227.

2 As a type of these see the Preamble and Resolutions debated at the Exchange Coffee House, preparatory to choosing delegates to the Anti-Tariff Convention, Boston, August 16, 1831; Journal of the Free-Trade convention, Philadelphia, September 30 to October 7, 1831; Memorial Address of its Committee to the People of the United States, New York, 1832.

SOUTHERN PROTESTS.

389

But the classic and accepted exposition of all anti-tariff opinions was embodied in the South Carolina "exposition of 1828," made by the legislature. It was in elaboration of this doctrine that Calhoun wrote one of the most famous letters in our history. Before outlining this important letter, it is necessary to trace the course of events in Congress.

The protectionists did not at first understand the deep significance of the Southern protests, and inclined to look upon them as nothing more than the usual political fulminations of a minority party. About the time of their appearance a very irrelevant, but convenient question, relating to the public lands, came up in the Senate.2 It was seized by the leaders of the nullification movement as an opportunity for attacking the tariff and the whole body of interpretation on which it was based. The whole matter in brief was this: did the tariff, because of its protective feature, discriminate against portions of the Union? And in imposing it had Congress violated the true meaning of the Constitution?

The debate on the public land resolution attracted little attention till the nineteenth of January, when Senator Hayne, of South Carolina, in a powerful speech, charged New England with harboring designs of checking immigration into the West, and the South appealed to this part of the country to unite with it against the East in a policy of free trade and public lands on easy terms. To this attack on his native region, Webster replied on the following day and exposed the groundlessness of Hayne's charges. The speech was a marvel of merciless logic not

3

1 To James Hamilton, Governor of South Carolina, August 28, 1832; Calhoun's Works, VI, 144-193.

2 Foot's Resolution on the Public Lands, December, 1829. 8 January 20, 1830; Webster's Works, III, 348.

390

WEBSTER AND HAYNE.

unmingled with sarcasm, by which Webster believed he had reduced Hayne's accusations to an absurdity. The manner rather than the matter of the speech offended Hayne. On the twenty-first, he addressed the Senate again, and particularly Mr. Webster, on whose presence he insisted, and discussed the great question of the foundations of our government. The fundamental question, he said, was whether the colonies when they became independent nations, intended to form a federal or a national union. The question was older than the government, for it had been discussed down to the last detail in the ratifying conventions of 1788.2

In his answer, the day before, Webster had ridiculed the idea embodied in the South Carolina protest, that a State has a constitutional remedy in the exercise of its sovereign authority for a gross, palpable and deliberate violation of the Constitution. A union such as would be formed among sovereign States he stigmatized as a mere rope of sand. But this was only Webster's opinion, whose personal authority did not satisfy Hayne. He threw into the opposite scale the authority on which, he said, South Carolina relied, the doctrine contained in the report of its legislature in December, 1828, and known as the South Carolina exposition. He believed that this authority far outweighed Webster's personal opinion. It was "the good old Republican doctrine of '98,-the doctrine of the celebrated Virginia resolutions of that year, and of Madison's report of '99, that the powers of the Federal Government result from the compact to which the States are parties, are limited by the plain sense and intention of the instrument constituting the compact and are in no way valid other than as they are authorized by the grants enumerated

1 Johnston's American Orations, I, 213.

2 See Index, "Sovereignty."