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be collected. The addresses of the convention to the people of the United States, and of the state of South Carolina, used a tone and language not to be misunderstood. They tell you it is necessary for some one state to bring the question to issue-that Carolina will do it-that Carolina had thrown herself into the breach, and would stand foremost in resistance to the laws of the Union, and they solemnly call upon the citizens of the state to stand by the principles of the ordinance, for it is determined that no taxes shall be collected in that state. The ordinance gives the legislature the power to carry into execution, this determination. It contains within itself no seeds of dissolution:it is unlimited as to time; contains no restrictions as to application; provides no means for its amendment, modification or repeal. In their private, individual capacity, some members of the convention held out the idea, which had been advanced by some members of this house, that if the tariff law was made less oppressive, the ordinance would not be enforced.
[Mr. Poindexter here remarked, that he said that any new tariff law, even if more oppressive than the law of 1832, were passed, the ordinance would not apply to it.]
If the terms of the ordinance are considered, continued Mr. W., there is no possible mode of arresting it; so sure as time rolls on, and four days pass over our heads, the ordinance, and the laws emanating from it, will lead
to the employment of physical force, by the citizens of South Carolina, against the enforcement of the revenue laws. Although many of the most influential citizens of Carolina protested against the idea that any but moral force would be resorted to, yet the excitement and determined spirit of the people would, in his opinion, lead speedily to the employment of physical force.
[Mr. Calhoun: It is not intended to use any force, except against force. We shall not stop the proceedings of the United States courts; but maintain the authority of our own judiciary.]
Mr. Wilkins: How can the ordinance refer to any laws of the United States, when they are excluded from any operation within the limits of the state? Why do the laws and ordinances of South Carolina shut out the United States courts from appellate jurisdiction? Why do they shut the doors of the state courts against any inquisition from the United States courts? They intend that there shall be no jurisdiction over this subject, except through their own courts. They cut off the federal judiciary from all authority in that state, and bring back the state of things which existed prior to the formation of the federal constitution.
If we abolish our revenue system, they remain quiet. But if we go a hair's breadth towards enforcing that system, they present secession. We have secession on one hand, and nullification on the other. The senator from South Carolina admitted
the other day, that no such thing as constitutional secession could exist. Then civil war, disunion, and anarchy must accompany secession. No one denies the right of revolution. That is a natural, indefeasible, inherent right-a right which we have exercised and held out, by our example, to the civilized world. Who denies it? Then we have revolution by force, not constitutional secession. That violence must come by secession, is certain.
Another law passed by the legislature of South Carolina, is entitled a bill to provide for the safety of the people of South Carolina. It advises them to put on their armour. It puts them in military array; and for what purpose but for the use of force? The provisions of these laws are infinitely worse than those of the feudal system, so far as they apply to the citizens of Carolina. But with its operations on their own citizens, he had nothing to do. Resistance was just as inevitable as the arrival of the day on the calendar. If we judge by newspaper and, other reports, more men were now ready to take up arms in Carolina, than there were during the revolutionary struggle. The whole state was at this moment in arms, and its citizens are ready to be embattled the moment any attempt was made to enforce the revenue laws.
Mr. W. then passed to the consideration of the provisions in the bill. The first section of the bill, he said, contains provisions which are preventive and peaceful,
It enjoins forbearance on the executive, and gives him power to remove the custom house to a secure place, where the duties may be collected. Our object in removing the custom house, is to prevent all collision if possible. The power given in this clause is not new; the clause is simply declaratory of the existing law, as it has been held by our courts; for it has been decided, that where it is impossible to collect the duties, the officers of the customs may remove the custom house.
The next paragraph provides for the cash payment of duties, under circumstances which render it impossible to collect the duties in the ordinary way. Why should the practice of taking bonds be persisted in, when they say they are not bound to pay the bonds. It is a mockery to take bonds, when the constitution and the law release the people bound, from the obligation of the bonds. Suits must be brought to enforce the payment of the bonds, and the authority of the state and federal tribunals would thereby be brought into conflict, which conflict the bill seeks to avoid. The 62d section of the act of the 2d of March, 1799, refuses credit to merchants who have refused to pay their bonds. The same principle is applied to the present case, where people are combined to prevent the payment of bonds.
The third and remaining exigency provided for in this first section, is the authority to employ the land or naval forces, or militia. This provision is entirely defensive. It merely con
firms the authority for the protection of the custom house and revenue officers. The simple question is, do you require obedience to the laws? The custom house officers are not sufficiently numerous to enforce obedience to the laws: pains, penalties, indictments, all hang over the head of that man who is bold enough to exact payment. The legislature forbids the enforcement of the law; and he who attempts to enforce it, must suffer the penalty of the law, as surely as he is convicted of the offence. The marshal, in this stage of the business, cannot interpose. The militia cannot be called out, for the best reason in the world, that they are committed in support of the other side of the question. Now what is to be done? It is the duty of the president to take care that the laws shall be executed. He is invested with the power by the constitution, and the public hold him responsible for its exercise. You can You can vest the power nowhere else. The first section of the second article of the constitution invests the president with the "executive power," and he is required to take an oath faithfully to execute the office, and preserve the constitution. The second section of the same article makes him the commander-in-chief of the army and navy of the United States, and of the militia, when called into actual service. The only question is, is it necessary to give these means to enforce the laws? If we intend to enforce the obe
dience of the laws, these powers must be given, and no where can they be constitutionally lodged but in the president. For this provision in the law, there is a precedent to which he would refer. The act of the 9th of January, 1809, sec. 11-13, to enforce the embargo, &c. The 2d section of the bill extends the jurisdiction of the circuit courts in revenue cases. It gives the right to sue, in these courts, for any injury incurred by officers, whilst engaged under the laws of congress, in the collection of duties on imports. It declares that property taken under the authority of the laws of the United States, shall be irrepleviable, and only subject to the order and decrees of the courts of the U. States; and it gives the penalty for the rescue of the property, as is prescribed by the act of 30th of April, 1790, section 22. The provisions of that law make the penalty not to exceed 300 dollars, and imprisonment for three months. This section has two objects in view: first, it gives power to the officers to sue in the federal courts; and second, it provides that they shall not be dispossessed of property seized by them, under the laws of the general government, without the authority of the courts of the United States. The object of this section is to meet legislation by legislation.
The laws of South Carolina, made to enforce the ordinance, are harsh and oppressive beyond any of the feudal laws. Under
the replevin act of South Carolina, the goods are first seized; if they are not given up, the return is made, and a capias in withernam issues; there is then a suit to recover back the duties; the custom house officer cannot remove the suit to any other court and the judges and jurors who are to decide the case, are under oath to support the ordinance. For this misdemeanour, the federal officers are subjected to a fine of $500 and two years imprisonment. And they are liable to have their own property, to double the amount of the goods seized, taken, and carried away.
The constitution of the courts in South Carolina, makes it necessary to give the revenue officers the right to sue in the federal courts. It falls under the clause of the constitution, which gives jurisdiction to the United States courts, in all cases arising under the constitution, treaties, and laws of the United States. He would put a case in a few words: Suppose the collector of the port of South Carolina is prosecuted. He is carried to prison, or the capias in withernam is issued against him. His property is carried off and sold. The case comes before the state court. He sets forth that, under the laws of the United States, he was obliged to do his duty. On the other side, it is said that the laws of the United States have been nullified, and the state laws have taken their place. Out of this issue springs a case provided for by the bill. But it is objected that the case will arise under the state law. But, shape
it which way you may, the case arises out of the laws and constitution of the United States, and the judicial power extends to all cases in law and equity. It ought to be so. There ought to be a judicial power co-extensive with the power of legislation, and a co-extensive executive power. Without this coextensive power, legislation would be useless in a free government. Neither domestic tranquillity, nor uniformity of rules and decisions, can be secured without it.
It may be said, (continued Mr W.) that in this way you overturn state legislation, and that they ought to give their own direction to state controversies. So they may, but let them not come in collision with the constitution and laws of the Union. In every controversy, within any state, arising under a state law, coming in collision with the constitution, or with a law of the United States, the federal courts have appellate jurisdiction. If appellate jurisdiction be given, the original could not be desired. All the residuum of jurisdiction remaining after the original jurisdiction given in specified cases, to the supreme court, might be exercised in any way by the inferior courts that congress might direct. These observations are applicable to the third section of the bill, which also provides for the extension of federal jurisdiction, by allowing the party, or officer of the United States sued in the state's court, for executing the laws of the Union, to remove the
case to the circuit court. It gives the right to remove at any time before trial, but not after judgment has been given, and thus affects in no way the dignity of the state tribunals. Whether in criminal or in civil cases, it gives this right of removal. Has congress this power in criminal cases? He would answer the question in the affirmative. Congress has the power to give this right in criminal as well as in civil cases, because the second section of the third article of the constitution speaks of "all cases in law and equity," and these comprehensive terms cover all.
The clause in the constitution to which he had adverted, refers to the character of the controversy, without regard to the parties, or the particular form of the action. The object of the suit, and not the tribunal, determined the jurisdiction. Was it to try the validity of an act of congress? That question determined the jurisdiction. Was it to try any indictment for treason? That question determined the jurisdiction. It was more necessary that this jurisdiction should be extended over criminal than over civil cases. If it was not admitted that the federal judiciary had jurisdiction over criminal cases, then was nullification ratified and sealed for ever: for a state would have nothing more to do than to declare an act a felony, or a misdemeanour, to nullify all the laws of the Union.
The fourth section of the bill is merely matter of form. There is no constitutional prin
ciple involved in it. It only authorizes the courts of the United States to supply the want of a copy of the record. It was intended to obviate the difficulty which was likely to arise from the novel provision contained in the eighth section of the replevin law of South Carolina, which makes it penal in the clerk to furnish such record. This provision does not meddle with the penalty of the clerk of the state court, but contents itself with providing means to supply the deficiency.
The fifth section authorizes the employment of military force under extraordinary circumstances, too powerful to overcome without such agency, and to be preceded by the proclamation of the president.
The first precedent which he would notice, was to be found in the act of May 2d, 1792, repealed by the act of February 28, 1795, renewing the power to call forth the militia, which act was still in force. This law grew out of the western_insurrection in Pennsylvania. Like the present bill, although it was merely intended to meet that exigency, it was so framed as to continue in force. So the bill under consideration, although it had special reference to South Carolina, pointed not to her alone. If the opposition to the laws should extend itself, and the spirit of disobedience should exhibit itself, whether in the south or the north, the general principles of the bill would be equally applicable. It is an amendment of our code of laws, to which the attention