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impossible, according to the forms of judicial proceedings, that the question whether they were in reality intended for revenue or protection, could be presented for decision, however clear the fact that protection and not revenue was intended. But facts do not hold out the president in his assertion, that no resort was had to the court to try the question of constitutionality. A spirited individual (Mr. Holmes) actually made an importation, with the express view of testing that question before the courts of the United States, and the result was as might be anticipated, that the court refused to take cognizance of the question of constitutionality.
In this connexion, there is another important fact that has immediate bearing on the point which the president ought, in justice, to have stated, before he undertook to impute the motives which he has, to the high-minded and gallant state, which Mr. C. had the honour to represent. It would be remembered by all, that when the bill of abomination, as it was justly called by the senator from Massachusetts, (for a bill of abomination it has proved, by bringing us to the very brink of civil war and dissolution,) was before the other house, that a delegate from the state of South Carolina moved to amend the title of the bill, so as to present its protective character, with the express view of trying the question of its constitutionality. The motion failed-it was voted down by the
tariff majority-and thus the state was deprived of the opportunity of testing the question before that very tribunal, which the president now tauntingly charges it with not having resorted to. Mr. C. said, that he could not but remark that there seemed now to be an extraordinary change within the last year, in reference to the powers of the court. He certainly inferred, from documents laid before congress, that the president did not consider the supreme court as the tribunal of the last resort, in a controversy between a state and the general government, where a neigbouring state was concerned. South Carolina and Georgia are divided by Savannah river. Was he to understand, that one rule of construction was to prevail on the east, another on the west side of that stream; or that the opinion of the president had undergone an entire change in so short a time? If so, he might allow, on the same subject, some latitude of opinion to others.
Another reason had also been assigned by the president for inculpating the motives of the state; that the state of South Carolina had not applied for an amendment to the constitution in the manner prescribed by it. It is a sufficient answer, to say that she has made the application; but it is said, she ought to have applied before she declared the acts in question unconstitutional. The answer to this objection was decisive. It was perfectly hopeless; she was in a fixed minority; the consti
tution requires two thirds of the states to authorize the call; and how absurd, with the knowledge of these facts, would an application for a convention have been, prior to her acting. She was right in waiting until she had acted; and now that she has, she has come forward with an application to bring the whole subject before a general convention of the states, which has ample power to terminate the controversy, by granting or refusing the power in question. She hopes that her act will bring the other states to reflection, so as to induce them to meet her in convention, and thereby terminate the question, which has so long agitated and distracted the country.
We have at last reached a period which has been long approaching, when it must be practically decided whether ours is a consolidated government, without limitation, or a confederative system. The decision of the issue presented in the message will determine this question; and on this decision depends the continuance of our Union, our constitution, and our liberty. Every created animate existence has, it is said, from its birth, the principle of decay. The same might be said, he feared, of political systems, and in ours, the cause upon which they were now called upon to act, had existed from the origin of our government. From the beginning, an essential diversity of opinion whether ours was a consolidated or a confederated system of government, has divided the two great parties
of the country; and he was amazed at reflecting that we have succeeded in advancing through forty-four years of our existence, without having settled a question which, as one or the other side obtained the ascendancy, must necessarily have so powerful a bearing upon the practical operation of the system. That question must now be decided. The message has presented the issue, and the final decision can no longer be delayed. If its recommendation should be sustained, and the principles which it inculcates should prevail, ours would in fact become a great consolidated government, without limitation of powers, or constitutional check. He begged the scnators to pause and reflect, before they came to so momentous a decision. It would be a gross deception, to suppose that there is the least distinction between a government, absolute and of unlimited powers, and one which has the right of deciding at pleasure the extent of its powers, as is maintained in effect by the message. Nor would the delusion be less gross, to suppose that such a government could long continue. It must end, and that speedily, in despotism, and that of the most oppressive character. Nothing could argue a more profound ignorance of human nature, and of the history of political institutions, not to see that in a country of such vast extent, and diversity of interests, a government of an absolute unchecked majority, must terminate as he had stated. If proo were wanting, the actual condi
tion in which we now find our selves, in the midst of this great and dangerous crisis, which threatens our very political existence, would furnish ample. How have we been brought to it? There has been no exterior difficulty for the last sixteen years; no conflict with any other power, nor any cause, not springing from the practical operation of the system, to disturb our repose; and yet, we find ourselves menaced with extreme danger, as acknowledged by all. No reason can be assigned for our present critical condition, but that we have practically departed from the great principle, that ours is a confederated government of limited powers; a principle which brought Mr. Jefferson into power in 1801, and which checked for a time, the disorders that must necessarily grow from an opposite view of our system of government For the last ten or twelve years, these principles have been departed from; and the government has gradually assumed an unlimited control over the industry and capital of the country. The result has been such as ought to have been anticipated. The dominant interest has legislated with reference to its own benefit, without consulting the feelings or views of the weaker. It has terminated in producing violent conflicts between the two great sections of the country.
After apologizing for his warmth, Mr. C. concluded, and after ordering the message to be printed, it was referred to the judiciary committee.
On the 21st of Jan., 1833, the committee reported a bill to enforce the collection of the revenue, where any obstructions were offered to the officers employed in that duty. This bill, (ordinarily called the enforcing bill,) provided that, whenever by reason of unlawful combinations, or unlawful threats against the revenue officers, the president should deem it impracticable to execute the revenue laws in the ordinary mode, at any particular port, the president of the United States may direct the custom house to be kept at some secure place within that state, and the duties accruing there, to be paid in cash, deducting interest. The goods which may be in custody of such collector, shall not be removed by any authority but that of the courts of the United States: and if any attempt be made to seize or obtain possession of said goods, under colour of any other authority, the president of the United States may direct the employment of the land and naval forces of the U. States to resist and repel it.
The 2d. section provides, that the jurisdiction of the circuit courts of the United States shall extend to all cases in law or equity, arising under the laws of the United States: and any person suffering injury in his person or his property, for any act done under the laws of the U. States, may institute and prosecute a suit in the circuit court, and be entitled to damages proportioned to said injury. Property seized by any officer of the government, under the authority of the
ceedings were regularly had before said court.
The fifth section provides, that whenever the president of the United states is officially inform
laws of the United States, is to be repleviable only by process of courts of the United States: and any person who shall dispossess or rescue any property in custody of an officer, shall be deemed that the execution of the laws ed guilty of misdemeanour, and of the U. States, or the decrees of liable to fine and imprisonment, the courts of the United States according to the act of 30th are obstructed by military April, 1790. force, he may proclaim and order the dispersion of such force; and, if it be not thereupon dispersed, he may employ the land and naval forces of the U. States to disperse the same, in conformity to the provisions of the acts of the 28th February, 1793, and 3d March, 1807.
The third section provides, that in any suit or prosecution, in any court of any state, against any officer, for any act done under the authority of the laws of the United States, it shall be lawful, at any time before the trial thereof, to remove the case, on petition and affidavit, to the circuit court of the United States, and any further proceedings thereon in the state courts, shall thereafter be null and void. This section further provides for continuation of all process and attachments, &c., as if the suit had been originally commenced in the circuit court. This section also contains provisions allowing the plaintiff' to declare, de novo, in case of the refusal of the state court to return a copy of the record, and in default of such declaration, authorizing a judgment of non pros. against him.
The fourth section provides, that where any copies of papers or records of any state court, necessary to be used in any suit in a court of the United States, are refused, the federal court may direct and allow the record to be supplied by affidavit or otherwise, as the circumstances of the case may allow, and proceed without it, as if certified copies of such records and pro
The sixth section provides, that the marshal of the U. States, for any district, in case of the use of the jails of any state being refused for the safe-keeping of prisoners committed under the laws of the United States, shall, under the direction of the district judge of said district, use such other places, and adopt such other measures, as may be necessary and expedient in such
The seventh and last section provides, that any judge of the circuit or district courts of the United States, may issue a writ of habeas corpus, to bring before him any individual confined in prison, under any law of any state, for the execution of any law of the United States, or of any decree of any court of the United States, and provides for the punishment of refusing to make a return, or making a false return to such writ, by fine and imprisonment.
The next day, 22d., some dis
cussion ensued, as to the proper time for taking up the bill; and after the 28th of Jan. was named, Mr. Calhoun rose, and after some animated remarks upon the character of the bill, he proposed, with the view of testing its principles, the following resolutions. "Resolved. That the people of the several states composing these United States, are united as parties to a constitutional compact, to which the people of each state acceded as a separate and sovereign community, each binding itself by its own particular ratification; and that the Union, of which the said compact is the bond, is an union between the states ratifying the same.
"Resolved, That the people of the several states thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which it was formed, delegated to that government, for that purpose, certain definite powers, to be executed jointly, reserving, at the same time, each state to itself, the residuary mass of powers to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, void, and of no effect; and that the said government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the constitution, the measure of its powers, but that, as in all other cases of compact among
sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction, as of the mode and measure of redress.
"Resolved, That the assertions that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social compact, and as such, are now formed into one nation, or people, or that they have ever been so united, in any one stage of their political existence; that the people of the several states composing the Union have not, as members thereof, retained their sovereignty; that the allegiance of their citizens has been transferred to the general government; that they have parted with the right of punishing treason, through their respective state governments; and that they have not the right of judging in the last resort, as to the extent of powers reserved, and of consequence, of those delegated; are not only without foundation in truth, but are contrary to the most certain and plain historical facts, and the clearest deductions of reason; and that all exercise of power on the part of the general government, or any of its departments, deriving authority from such erroneous assumptions, must, of necessity, be unconstitutional; must tend directly and inevitably to subvert the sovereignity of the states; to destroy the federal character of the Union, and to rear on its ruins a consolidated government, without constitutional check, or