What is the capital question in dispute? It is this: "Whose prerogative is it to decide on the const.i.tutionality or unconst.i.tutionality of the laws?"[1479] Can States decide? Can States "annul the law of Congress"?

Hayne, expressing the view of South Carolina, had declared that they could. He had based his argument upon the Kentucky and Virginia Resolutions--upon the theory that the States, and not the people, had created the Const.i.tution; that the States, and not the people, had established the General Government.

But is this true? asked Webster. He answered by paraphrasing Marshall's words in M'Culloch _vs._ Maryland: "It is, sir, the people's const.i.tution, the people's Government; made for the people; made by the people; and answerable to the people.[1480] The people ... have declared that this Const.i.tution shall be the supreme law....[1481] Who is to judge between the people and the Government?"[1482]

The Const.i.tution settles that question by declaring that "the judicial power shall extend to all cases arising under the Const.i.tution and laws."[1483] Because of this the Union is secure and strong. "Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall const.i.tutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?"[1484]

Then Webster swept grandly forward to that famous peroration ending with the words which in time became the inspiring motto of the whole American people: "Liberty _and_ Union, now and forever, one and inseparable!"[1485]

Immediately after the debate between Hayne and Webster, Nullification gathered force in South Carolina. Early in the autumn of 1830, Governor Stephen Decatur Miller spoke at a meeting of the Sumter district of that State. He urged that a State convention be called for the purpose of declaring null and void the Tariff of 1828. Probably the National courts would try to enforce that law, he said, but South Carolina would "refuse to sustain" it. Nullification involved no danger, and if it did, what matter!--"those who fear to defend their rights, have none. Their property belongs to the banditti: they are only tenants at will of their own firesides."[1486]

Public excitement steadily increased; at largely attended meetings ominous resolutions were adopted. "The att.i.tude which the federal government continues to a.s.sume towards the southern states, calls for decisive and unequivocal resistance." So ran a typical declaration of a gathering of citizens of Georgetown, South Carolina, in December, 1830.[1487]

In the Senate, Josiah Stoddard Johnston of Louisiana, but Connecticut-born, made a speech denouncing the doctrine of Nullification, a.s.serting the supremacy of the National Government, and declaring that the Supreme Court was the final judge of the const.i.tutionality of legislation. "It has fulfilled the design of its inst.i.tution; ... it has given form and consistency to the const.i.tution, and uniformity to the laws."[1488] Nullification, said Johnston, means "either disunion, or civil war; or, in the language of the times, disunion and blood."[1489]

The Louisiana Senator sent his speech to Marshall, who answered that "it certainly is not among the least extraordinary of the doctrines of the present day that such a question [Nullification] should be seriously debated."[1490]

All Nullification arguments were based on the Kentucky and Virginia Resolutions. Madison was still living, and Edward Everett asked him for his views. In a letter almost as Nationalist as Marshall's opinions, the venerable statesman replied at great length and with all the ability and clearness of his best years.

The decision by States of the const.i.tutionality of acts of Congress would destroy the Nation, he wrote. Such decision was the province of the National Judiciary. While the Supreme Court had been criticized, perhaps justly in some cases, "still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation." It was absurd to deny the "supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State.... A law of the land" cannot be supreme "without a supremacy in the exposition & execution of the law."

Nullification was utterly destructive of the Const.i.tution and the Union.[1491]

This letter, printed in the _North American Review_,[1492] made a strong impression on the North, but it only irritated the South.

Marshall read it "with peculiar pleasure," he wrote Story: "M^r Madison ... is himself again. He avows the opinions of his best days, and must be pardoned for his oblique insinuations that some of the opinions of our Court are not approved. Contrast this delicate hint with the language M^r Jefferson has applied to us. He [Madison] is attacked ... by our Enquirer, who has arrayed his report of 1799 against his letter. I never thought that report could be completely defended; but M^r Madison has placed it upon its best ground, that the language is incautious, but is intended to be confined to a mere declaration of opinion, or is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a const.i.tution, but in opposition to it."[1493]

At a banquet on April 15, 1830, in celebration of Jefferson's birthday, Jackson had given a warning not to be misunderstood except by Nullifiers who had been blinded and deafened by their new political religion. "The Federal Union;--it must be preserved," was the solemn and inspiring toast proposed by the President. Southern leaders gave no heed. They apparently thought that Jackson meant to endorse Nullification, which, most illogically, they always declared to be the only method of preserving the Union peaceably.

Their denunciation of the Tariff grew ever louder; their insistence on Nullification ever fiercer, ever more determined. To a committee of South Carolina Union men who invited him to their Fourth of July celebration at Charleston in 1831, Jackson sent a letter which plainly informed the Nullifiers that if they attempted to carry out their threats, the National Government would forcibly suppress them.[1494]

At last the eyes of the South were opened. At last the South understood the immediate purpose of that enigmatic and self-contradictory man who ruled America, at times, in the spirit of the Czars of Russia; at times, in the spirit of the most compromising of opportunists.

Jackson's outgiving served only to enrage the South and especially South Carolina. The Legislature of that State replied to the President's letter thus: "Is this Legislature to be schooled and rated by the President of the United States? Is it to legislate under the sword of the Commander-in-Chief?... This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses."[1495]

Marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. "Things to the South wear a very serious aspect," he tells Story. "If we can trust appearances the leaders are determined to risk all the consequences of dismemberment. I cannot entirely dismiss the hope that they may be deserted by their followers--at least to such an extent as to produce a pause at the Rubicon. They undoubtedly believe that Virginia will support them. I think they are mistaken both with respect to Virginia and North Carolina. I do not think either State will embrace this mad and wicked measure. New Hampshire and Maine seem to belong to the tropics. It is time for New Hampshire to part with Webster and Mason. She has no longer any use for such men."[1496]

As the troubled weeks pa.s.sed, Marshall's apprehension increased. Story, profoundly concerned, wrote the Chief Justice that he could see no light in the increasing darkness. "If the prospects of our country inspire you with gloom," answered Marshall, "how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? I yield slowly and reluctantly to the conviction that our const.i.tution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus far by miracles. I fear they cannot continue."[1497]

Congress heeded the violent protest of South Carolina--perhaps it would be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it reduced tariff duties; but the protective policy was retained. The South was infuriated--if the principle were recognized, said Southern men, what could they expect at a later day when this capitalistic, manufacturing North would be still stronger and the unmoneyed and agricultural South still weaker?

South Carolina especially was frantic. The spirit of the State was accurately expressed by R. Barnwell Smith at a Fourth of July celebration: "If the fire and the sword of war are to be brought to our dwellings, ... let them come! Whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!"[1498] At meetings all over the State treasonable words were spoken. Governor James Hamilton, Jr., convened the Legislature in special session and the election of a State convention was ordered.

"Let us act, next October, at the ballot box--next November, in the state house--and afterwards, should any further action be necessary, let it be where our ancestors acted, _in the field of battle_";[1499] such were the toasts proposed at banquets, such the sentiments adopted at meetings.

On November 24, 1832, the State Convention, elected[1500] to consider the new Tariff Law, adopted the famous Nullification Ordinance which declared that the Tariff Acts of 1828 and 1832 were "null, void, and no law"; directed the Legislature to take measures to prevent the enforcement of those acts within South Carolina; forbade appeal to the Supreme Court of the United States from South Carolina courts in any case where the Tariff Law was involved; and required all State officers, civil and military, to take oath to "obey, execute and enforce this Ordinance, and such act or acts of the Legislature as may be pa.s.sed in pursuance thereof."

The Ordinance set forth that "we, the People of South Carolina, ... _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" any act of the National Government to enforce the Tariff Laws "as inconsistent with the longer continuance of South Carolina in the Union: and that the People of this State ...

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."[1501]

Thereupon the Convention issued an address to the people.[1502] It was long and, from the Nullification point of view, very able; it ended in an exalted, pa.s.sionate appeal: "Fellow citizens, the die is now cast. NO MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR COUNTRY, AND LEAVE THE CONSEQUENCES TO G.o.d."[1503]

Excepting only at the outbreak of war could a people be more deeply stirred than were all Americans by the desperate action of South Carolina. In the North great Union meetings were held, fervid speeches made, warlike resolutions adopted. The South, at first, seemed dazed.

Was war at hand? This was the question every man asked of his neighbor.

A pamphlet on the situation, written by some one in a state of great emotion, had been sent to Marshall, and Judge Peters had inquired about it, giving at the same time the name of the author.

"I am not surprised," answered Marshall, "that he [the author] is excited by the doctrine of nullification. It is well calculated to produce excitement in all.... Leaving it to the courts and the custom house will be leaving it to triumphant victory, and to victory which must be attended with more pernicious consequences to our country and with more fatal consequences to its reputation than victory achieved in any other mode which rational men can devise."[1504] If Nullification must prevail, John Marshall preferred that it should win by the sword rather than through the intimidation of courts.

Jackson rightly felt that his reelection meant that the country in general approved of his att.i.tude toward Nullification as well as that toward the Bank. He promptly answered the defiance of South Carolina. On December 10, 1832, he issued his historic Proclamation. Written by Edward Livingston,[1505] Secretary of State, it is one of the ablest of American state papers. Moderate in expression, simple in style, solid in logic, it might have been composed by Marshall himself. It is, indeed, a restatement of Marshall's Nationalist reasoning and conclusions. Like the argument in Webster's Reply to Hayne, Jackson's Nullification Proclamation was a repet.i.tion of those views of the Const.i.tution and of the nature of the American Government for which Marshall had been fighting since Washington was made President.

As in Webster's great speech, sentences and paragraphs are in almost the very words used by Marshall in his Const.i.tutional opinions, so in Jackson's Proclamation the same parallelism exists. Gently, but firmly, and with tremendous force, in the style and spirit of Abraham Lincoln rather than of Andrew Jackson, the Proclamation makes clear that the National laws will be executed and resistance to them will be put down by force of arms.[1506]

The Proclamation was a triumph for Marshall. That the man whom he distrusted and of whom he so disapproved, whose election he had thought to be equivalent to a dissolution of the Union, should turn out to be the stern defender of National solidarity, was, to Marshall, another of those miracles which so often had saved the Republic. His disapproval of Jackson's rampant democracy, and whimsical yet arbitrary executive conduct, turned at once to hearty commendation.

"Since his last proclamation and message," testifies Story, "the Chief Justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occurrence?"[1507] Marshall realized, nevertheless, that even the bold course pursued by the President could not permanently overcome the secession convictions of the Southern people.

The Union men of South Carolina who, from the beginning of the Nullification movement, had striven earnestly to stay its progress, rallied manfully.[1508] Their efforts were futile--disunion sentiment swept the State. "With ... indignation and contempt," with "defiance and scorn," most South Carolinians greeted the Proclamation[1509] of the man who, only three years before, had been their idol. To South Carolinians Jackson was now "a tyrant," a would-be "Caesar," a "Cromwell," a "Bonaparte."[1510]

The Legislature formally requested Hayne, now Governor, to issue a counter-proclamation,[1511] and adopted spirited resolutions declaring the right of any State "to secede peaceably from the Union." One count in South Carolina's indictment of the President was thoroughly justified--his approval of Georgia's defiance of Marshall and the Supreme Court. Jackson's action, declared the resolutions, was the more "extraordinary, that he has silently, and ... with entire approbation, witnessed our sister state of Georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in South Carolina." The Legislature finally resolved that the State would "repel force by force, and, relying upon the blessing of G.o.d, will maintain its liberty at all hazards."[1512]

Swiftly Hayne published his reply to the President's Proclamation. It summed up all the arguments for the right of a State to decide the const.i.tutionality of acts of Congress, that had been made since the Kentucky Resolutions were written by Jefferson--that "great Apostle of American liberty ... who has consecrated these principles, and left them as a legacy to the American people, recorded by his own hand." It was Jefferson, said Hayne, who had first penned the immortal truth that "NULLIFICATION" of unconst.i.tutional acts of Congress was the "RIGHTFUL REMEDY" of the States.[1513]

In his Proclamation Jackson had referred to the National Judiciary as the ultimate arbiter of the const.i.tutionality of National laws. How absurd such a claim by such a man, since that doctrine "has been denied by none more strongly than the President himself" in the Bank controversy and in the case of the Cherokees! "And yet when it serves the purpose of bringing odium on South Carolina, 'his native State,' the President has no hesitation in regarding the attempt of a State to release herself from the control of the Federal Judiciary, in a matter affecting her sovereign rights, as a violation of the Const.i.tution."[1514]

In closing, Governor Hayne declares that "the time has come when it must be seen, whether the people of the several States have indeed lost the spirit of the revolution, and whether they are to become the willing instruments of an unhallowed despotism. In such a sacred cause, South Carolina will feel that she is not striking for her own, but the liberties of the Union and the RIGHTS OF MAN."[1515]

Instantly[1516] the Legislature enacted one law to prevent the collection of tariff duties in South Carolina;[1517] another authorizing the Governor to "order into service the whole military force of this State" to resist any attempt of the National Government to enforce the Tariff Acts.[1518] Even before Hayne's Proclamation was published, extensive laws had been pa.s.sed for the reorganization of the militia, and the Legislature now continued to enact similar legislation. In four days fourteen such acts were pa.s.sed.[1519]

The spirit and consistency of South Carolina were as admirable as her theory was erroneous and narrow. If she meant what she had said, the State could have taken no other course. If, moreover, she really intended to resist the National Government, Jackson had given cause for South Carolina's militant action. As soon as the Legislature ordered the calling of the State Convention to consider the tariff, the President directed the Collector at Charleston to use every resource at the command of the Government to collect tariff duties. The commanders of the forts at Charleston were ordered to be in readiness to repel any attack. General Scott was sent to the scene of the disturbance. Military and naval dispositions were made so as to enable the National Government to strike quickly and effectively.[1520]

Throughout South Carolina the rolling of drums and blare of bugles were heard. Everywhere was seen the blue c.o.c.kade with palmetto b.u.t.ton.[1521]

Volunteers were called for,[1522] and offered themselves by thousands; in certain districts "almost the entire population" enlisted.[1523] Some regiments adopted a new flag, a banner of red with a single black star in the center.[1524]

Jackson attempted to placate the enraged and determined State. In his fourth annual Message to Congress he barely mentioned South Carolina's defiance, but, for the second time, urgently recommended a reduction of tariff duties. Protection, he said, "must be ultimately limited to those articles of domestic manufacture which are indispensable to our safety in time of war.... Beyond this object we have already seen the operation of the system productive of discontent."[1525]

Other Southern States, although firmly believing in South Carolina's principles and sympathetic with her cause, were alarmed by her bold course. Virginia essayed the role of mediator between her warlike sister and the "usurping" National Government. In his Message to the Legislature, Governor John Floyd stoutly defended South Carolina--"the land of Sumpter [_sic_] and of Marion." "Should force be resorted to by the federal government, the horror of the scenes hereafter to be witnessed cannot now be pictured.... What surety has any state for her existence as a sovereign, if a difference of opinion should be punished by the sword as treason?" The situation calls for a reference of the whole question to "the PEOPLE of the states. On you depends in a high degree the future destiny of this republic. It is for you now to say whether the brand of civil war shall be thrown into the midst of these states."[1526]

Mediative resolutions were instantly offered for the appointment of a committee "to take into consideration the relations existing between the state of South Carolina and the government of the United States," and the results to each and to Virginia flowing from the Ordinance of Nullification and Jackson's Proclamation. The committee was to report "such measures as ... it may be expedient for Virginia to adopt--the propriety of recommending a general convention to the states--and such a declaration of our views and opinions as it may be proper for her to express in the present fearful impending crisis, for the protection of the right of the states, the restoration of harmony, and the preservation of the union."[1527]

Only five members voted against the resolution.[1528]

The committee was appointed and, on December 20, 1832, reported a set of resolutions--"worlds of words," as Niles aptly called them--disapproving Jackson's Proclamation; applauding his recommendation to Congress that the tariff be reduced; regretting South Carolina's hasty action; deprecating "the intervention of arms on either side"; entreating "our brethren in S. Carolina to pause in their career"; appealing to Jackson "to withstay the arm of force"; instructing Virginia Senators and requesting Virginia Representatives in Congress to do their best to "procure an immediate reduction of the tariff"; and appointing two commissioners to visit South Carolina with a view to securing an adjustment of the dispute.[1529]

With painful anxiety and grave alarm, Marshall, then in Richmond, watched the tragic yet absurd procession of events. Much as the doings and sayings of the mediators and sympathizers with Nullification irritated him, serious as were his forebodings, the situation appealed to his sense of humor. He wrote Story an account of what was going on in Virginia. No abler or more accurate statement of the conditions and tendencies of the period exists. Marshall's letter is a doc.u.ment of historical importance. It reveals, too, the character of the man.

It was written in acknowledgment of the receipt of "a proof sheet" of a page of Story's "Commentaries on the Const.i.tution of the United States,"

dedicating that work to Marshall. "I am ... deeply penetrated," says Marshall, "by the evidence it affords of the continuance of that partial esteem and friendship which I have cherished for so many years, and still cherish as one of the choicest treasures of my life. The only return I can make is locked up in my own bosom, or communicated in occasional conversation with my friends." He congratulates Story on having finished his "Herculean task." He is sure that Story has accomplished it with ability and "correctness," and is "certain in advance" that he will read "every sentence with entire approbation. It is a subject on which we concur exactly. Our opinions on it are, I believe, identical. Not so with Virginia or the South generally."

Marshall then relates what has happened in Richmond: "Our legislature is now in session, and the dominant party receives the message of the President to Congress with enthusiastic applause. Quite different was the effect of his proclamation. That paper astonished, confounded, and for a moment silenced them. In a short time, however, the power of speech was recovered, and was employed in bestowing on its author the only epithet which could possibly weigh in the scales against the name of 'Andrew Jackson,' and countervail its popularity.

"Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist--a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.