Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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NULLIFICATION (IN U. S. HISTORY), the formal suspension by a state government of the operation of a law of the United States within the territory under the jurisdiction of the state. Such a suspension was attempted successfully by Georgia, 1825-30 (see CHEROKEE CASE), and unsuccessfully by South Carolina in 1832-3; but the two cases must be distinguished. In the former case, the refusal to obey the federal law forbidding intrusion upon the Indian territory was hardly founded on any claim of right; it was rather a case of law-breaking than of nullification. In the latter case, the state power to nullify was claimed as an integral feature in American constitutional law. The success of the former attempt left the federal government still in a position to assert its functions in the future and to maintain them better as it gained more strength; the success of the latter would have radically altered the nature of the Union.


—After the passage of the Kentucky and Virginia resolutions in 1798-9 (see KENTUCKY RESOLUTIONS), the state governmental organizations were utilized as political weapons in several well-known instances of resistance to the federal government or its enactments. In 1809, in the Olmstead case, the state government of Pennsylvania had gone so far as to order out the state militia to oppose the mandate of a federal court, in 1809-10 the judges, governors and legislatures of all the New England states had strained every point of law which ingenuity could suggest to thwart or hinder the restrictive system (see EMBARGO); in 1820 Ohio had similarly opposed the operations of the branch of the United States bank within its limits (see BANK CONTROVERSIES, III.); but, in all these cases, the struggle between the state and federal governments had been governed by the tacit understanding of both parties that in the end the state government must give way, unless relieved by some party change in the control of the federal government, or by the laches of the federal government in maintaining its position. In the language of John Taylor, of Caroline, the most intense of Jeffersonian nullifiers, "the appeal is to public opinion; if that is against as we must yield." (See also PERSONAL LIBERTY LAWS.)


—The passage of the tariff of 1824 (see TARIFFS) showed a disposition among northern representatives of all parties to so arrange the duties on imports as to protect American manufactures, and this was followed by the still more protective tariff of 1828. Under a system of slave labor, in which workmen would have no incentives to skill, thoroughness or economy, manufactures in the south were au impossibility; and southern leaders naturally looked upon protection as a contrivance to benefit a northern interest at the expense of the whole people.


—The constitutional objections to the levying of protective duties by congress were that, though the constitution gives congress power to lay and collect duties and imposts, the power is granted only for the purpose of raising revenue to "pay the debts and provide for the general welfare" of the country; that this was in its nature very different from the asserted power to impose protective or prohibitory duties, for the prohibitory system must end in destroying revenue from imports; that it was equally incompatible with the general welfare clause, being exercised for the benefit only of a particular interest; and that the passage of a protective system by a majority in congress did not make it the less a violation of the constitution.


—The first to cast about for a remedy for the "tyranny of a majority" was John C. Calhoun, of South Carolina. It is strange that his failure to find the remedy in the constitution did not lead him to suspect that the southern labor system was at fault in the matter; on the contrary, he proceeded to coin the extraordinary and extra constitutional remedy to which he gave the name of "nullification," borrowed from the Kentucky resolutions of 1799, where it seems to be used in an entirely different sense. Jeffersonian nullification contemplated a concerted action of states which should, if three-fourths of the states could be induced to agree in reprobating a federal law, "nullify" it in national convention by constitutional amendment; Calhoun nullification contemplated a suspension of the law by any aggrieved state, until three-fourths of the states, in national convention, should overrule the nullification. Both ideas encouraged frequent national conventions; but it is obvious that under the latter, if one-fourth of the states should support the recalcitrant state, the minority, having the initiative, would be enabled to veto any policy which should be disagreeable to it.


—The substance of Calhoun's arguments for the propriety and expediency of nullification was as follows: 1. The basis of the whole was the dogma of state sovereignty. "It is a gross error," said Calhoun, in February, 1833, "to confound the exercise of sovereign power with sovereignty itself, or the delegation of such powers with a surrender of them. A sovereign may delegate his powers to be exercised by as many agents as he may think proper, under such conditions and with such limitations as he may impose; but to surrender any portion of his sovereignty to another is to annihilate the whole." From this, thought Calhoun, it would fairly follow that, whenever a sovereign state became satisfied that her agent, the federal government, was misusing the powers delegated to it, it was the right of the state to suspend the exercise of the power delegated until it should be properly used. A. H. Stephens thinks this use of state sovereignty, as a basis for nullification, "too subtle" for common comprehension, but the difficulty seems to have lain, for once, in a defect of Calhoun's logic. If his premise, the idea that the Union was a compact between sovereign states, were true, it might justify a state in regarding the compact as entirely at an end, if it believed the compact to have been violated or subverted by other states; but it could not justify a state in remaining in the Union, receiving all its benefits, and nullifying its laws at pleasure. Many southerners, in 1832-3, would have shown great respect for a direct secession by South Carolina, but regarded nullification with contempt and dislike. (See STATE SOVEREIGNTY, SECESSION.) Another point in which both schemes of nullification failed to connect with that of state sovereignty was their usually tacit admission that the nullifying state should submit if its nullification failed to be supported by the national convention. In that event what was to become of the nullifying state's sovereignty? 2. Underlying all the doctrines of nullification, state sovereignty and secession, was the notion that the government of the United States was "one of love, not of force"; that obedience to its laws was rather voluntary than compulsory; and that general discontent with any law in any considerable section of the Union was proof positive that the law was wrong or unwise and must be altered or repealed. Of course such a system of government for human beings is an impossibility; but the idea was not confined to nullificationists, was fostered by loose expressions and by the almost imperceptible working of the national governmental machinery, and was quite general until it vanished in the fire of the rebellion. (See NATION) 3. The propriety of leaving the final decision of disputed questions as to the powers of congress to the supreme court was denied because the court was itself a part of the federal government, whose powers were in question; because very many cases were not capable of being put into form of a suit to be brought before the court; and because the court itself had taken distinct and aggressive ground against the states. (See JUDICIARY, II.) 4. The two-fold comitia of the Roman republic, each independent of the other and yet both uniting, by mutual forbearance and concession, in a concurrent authority, were instanced to demonstrate the innocuousness and even expediency of nullification. The instance might have been a fair one if there had been in question but a pair of states, instead of a Union; but with twenty-four states in 1830, and thirty-eight in 1883, it is not easy to calculate the geometrical progression of the difficulties which would have attended an attempt to govern through twenty five or thirty-nine co-ordinate comitia.


—The first open assertion of nullification as a constitutional right of each individual state, that is, of Calhoun nullification, was in the adoption of the so-called "South Carolina Exposition" by the legislature of that state. This was a report of a committee of that body, originally prepared by Calhoun during the summer of 1828. In the following winter, 1829-30, Calhoun being president of the United States senate, occurred the "great debate in the senate" (see FOOT'S RESOLUTION), in the course of which Hayne, of South Carolina, first avowed and defended in congress the right of a state to nullify a federal law. His position was thus stated by Webster: "I understand the honorable gentleman from South Carolina to maintain that it is a right of the state legislature to interfere, whenever, in their judgment, this government transcends its constitutional limits, and to arrest the operation of its laws. I understand him to maintain this right as a right existing under the constitution; not as a right to overthrow it, on the ground of extreme necessity, such as would justify violent revolution. I understand him to maintain an authority, on the part of the states, thus to interfere for the purpose of correcting the exercise of power by the general government, of checking it, and of compelling it to conform to their opinion of the extent of its powers. I understand him to maintain that the ultimate power of judging of the constitutional extent of its own authority is not lodged exclusively in the general government; but that, on the contrary, the states may lawfully decide for themselves, and each state for itself, whether in a given case the act of the general government transcends its power. I understand him to insist that if the exigency of the case, in the opinion of any state government, require it, such state government may, by its own sovereign authority, annul an act of the general government which it deems plainly and palpably unconstitutional."


—Webster's definition of nullification has been taken, rather than anything in Calhoun's or Hayne's speeches, because, though formulated by an enemy to nullification, it more exactly states it. It was not the object of the advocates of nullification to define it exactly; in the endeavor to establish a new feature in the American constitutional system, it would have been impolitic to lay down a limit beyond which they would not go, and to less than which they would not submit. In this instance Hayne neither accepted nor rejected Webster's definition, but referred him to the third of the Virginia resolutions, which claims the right for the states to "interpose." Hayne seems to have held that the legislature of a state might nullify; Calhoun held the slightly more tenable ground that nullification must be carried out by a state convention, as the highest exponent of the sovereignty of the state, and that the legislature had only to enforce the acts of the convention. It will be seen that South Carolina's nullification followed the theory of Calhoun, not that of Hayne.


—That portion of the debate which related peculiarly to nullification, and which was confined to Webster and Hayne (Calhoun being the presiding officer, and not privileged to debate), took place Jan. 20-26, 1830. Had the modern system of national conventions been in existence, the attempt would immediately have been made to secure control of a democratic convention, and commit the party to the new doctrine, as was successfully done in the case of Texas annexation in 1844. (See DEMOCRATIC PARTY, IV.) The best substitute known at the time was adopted; a dinner was given April 13, 1830, to commemorate Jefferson's birthday; all the leading democrats in or near Washington were invited; and the twenty-four regular toasts were carefully drawn to suggest nullification as the inevitable result of Jefferson's political teachings. Among the invited guests was President Jackson, who, at the end of the regular toasts, being invited to offer one, gave the since famous toast, "Our federal Union; it must be preserved." Calhoun retorted with another: "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 burden of the Union." Evidently, in Jackson, nullification had found a lion in the way. Hitherto he had admired and liked Calhoun, had regarded him as his zealous defender on several critical occasions, had given three of the six cabinet positions to friends of Calhoun, and apparently would have had little objection to seeing Calhoun succeed him in the presidency. From this time he began to develop an antipathy to Calhoun, as the contriver of nullification, which other aspirants for the succession were interested in increasing. Proof was brought to the president that Calhoun had condemned, instead of defending, his course in the Seminole war (see ANNEXATIONS, II.); Calhoun, having been brought to account by the president, began the preparation of a pamphlet defending his own course in that affair, which was published in March, 1831; in the following month the president broke up his cabinet, thus getting rid of the three Calhoun members of it; and from that time Calhoun, the opponent of Jackson, was regarded by the president's party very much as Burr, the opponent of Jefferson, had been in 1807. (See KITCHEN CABINET)


—July 26, 1831, Calhoun published a treatise on nullification in a South Carolina newspaper, which was widely copied. It argued, as before, in favor of the constitutionality and expediency of nullification, and took the further ground that unless congress, at the approaching session, should eliminate the protective features from the tariff, it would be advisable that South Carolina should force an issue by nullifying the law and forbidding the collection of the duties within the state. The national debt was being steadily decreased (in 1835 it amounted to only $ 37.513); the total ordinary expenses of the government were from twelve to thirteen millions of dollars (in 1831, $ 13,864,067); the revenue from customs alone was about twenty-five millions (in 1831, $ 24,224,441); what then, asked Calhoun, was the honest and proper course for the federal government to pursue upon the approaching extinguishment of the debt? To continue to tax the non-manufacturing south, by high duties on imports, for the benefit of northern manufacturers, and to expend the surplus of receipts over expenditures in a system of internal improvements which would demoralize and corrupt both congress and its constituents? or to prevent the accumulation of the surplus by a timely and judicious reduction of the duties, and thereby to leave the money in the pockets of those who made it, from whom it can not be honestly or constitutionally taken, unless required by the fair and legitimate wants of the government? If the former course was persisted in, it would become an intolerable grievance, and South Carolina ought to cease to look to the general government for relief, exercise her reserved right of nullification, and relieve herself by forbidding the collection of the obnoxious duties in her ports, and allow her citizens to supply themselves with foreign goods untaxed. No attempt was ever made by any nullificationist to reconcile this programme with the plain direction of the constitution that "all duties, imposts and excises shall be uniform throughout the United States," and "that no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another"; no human ingenuity could reconcile them.


—Nearly all of the seven months of the following session was taken up by the consideration of Clay's tariff bill, which finally became law, July 14, 1832, the vote standing 132 to sixty-five in the house and thirty-two to sixteen in the senate. The act was to go into effect March 3, 1833. It reduced the duties on many of the articles on its list to 25 per cent., instead of 30 per cent., as before; but it recognized fully the principle of protection; the heavier duties were still designed for the protection of manufactures; every southern senator and representative opposed to protection voted against the bill; and McDuffle, of South Carolina, declared in debate that it increased the amount of protection to manufactures and also the burdens of the south.


—In South Carolina, where this result of the winter's session of congress had already been discounted in speculation, the next step was nullification. The legislature was convened, Oct. 22, by the governor, and passed an act calling a state convention, which met at Columbia, Nov. 19, 1832, and passed an ordinance of nullification, Nov. 24 This ordinance, 1, declared the tariff acts of 1828 and 1832 to be null, void, and no law, nor binding upon the state, its officers or citizens; 2, prohibited the payment of duties under either act within the state after Feb. 1, 1833; 3, made any appeal to the supreme court of the United States, as to the validity of the ordinance, a contempt of the state court from which the appeal was taken, punishable at the discretion of the latter; 4. ordered every office holder and juror to be sworn to support the ordinance; and 5, gave warning that, if the federal government should attempt to enforce the tariff by the use of the army or navy, or by closing the ports of the state, or should in any way harass or obstruct the state's foreign commerce, South Carolina would no longer consider herself a member of the Union, but would forthwith proceed to organize a separate government.


—The two points about the ordinance which are especially to be noted, in considering the success or failure of nullification, are, 1, that the ordinance, which was now a part of the organic law of the state, irreversible except by another convention, had declared positively that the existing duties should not be collected after Feb. 1 following; and 2, that force in any form would be followed by secession. A union party, admitting the right of secession, but not that of nullification, existed in the state, but the action of the convention was generally supported in and out of the legislature. Simms, as cited among the authorities, gives the respective voting strength of the two parties at 30,000 and 15,000. The new legislature, which met in December, 1832, and was almost entirely made up of nullifiers, elected Hayne governor, put the state in a position for war, and passed various acts reassuming powers which had been expressly prohibited to the states by the constitution. Gov. Hayne's message defended the doctrine of nullification, and declared the primary allegiance of every citizen to be due to the state. (See ALLEGIANCE, III.) In January, 1833, the legislature, having passed all the acts necessary to empower state officers to resist the levy of duties, to recover property seized for nonpayment of duties, and to resist the mandates of federal courts with the whole posse comitatus, adjourned and left the field clear for the struggle.


—It is as well to group here the successive steps by which the federal government disregarded the convention's threats in case of the application of force, or of the harassing in any way of the state's foreign commerce. Nov. 6. 1832, the president had instructed the collector at Charleston to provide as many boats and inspectors as might be necessary, to seize every vessel entering the port and keep it in custody until the duties should be paid, "to retain and defend the custody of the said vessel against any forcible attempt," and to refuse to obey the legal process of state courts intended to remove the vessel from his custody. Gen. Scott was ordered to Charleston to support the collector, and a naval force was sent to the harbors of the state. Dec. 11, the president issued his so-called "nullification proclamation." It declared the doctrine of nullification to be "incompatible with the existence of the Union, contradicted expressly by the letter of the constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed"; but stronger than all its arguments was its warning to the people of the state: "The dictates of a high duty oblige me solemnly to announce that you can not succeed. The laws of the United States must be executed. I have no discretionary power on the subject—my duty is emphatically pronounced in the constitution. Those who told you that you might peaceably prevent their execution deceived you—they could not have been deceived themselves. Their object is disunion, and disunion by armed force is treason. Are you ready to incur its guilt? If you are, on your unhappy state will fall all the evils of the conflict you force upon the government of your country." Strong as was this language, the known character of its author added still more force to it; no man was so dull as not to understand that Andrew Jackson's "execution of the laws in the face of organized opposition" meant the utter destruction either of the president or of the opposition. In the north the proclamation was received with almost unanimous enthusiasm; in the border states it was received more coolly, even Clay finding "many things in it too ultra" for his taste; in the other southern states there was a certain feeling of neutrality, discontent with South Carolina, but determination that she should not be "coerced." Dec. 31, Gov. Hayne issued a counter-proclamation, warning the citizens of the state not to be seduced from their primary allegiance to the state by the "dangerous, pernicious, specious and false" doctrines of the president's proclamation. Jan. 16, 1833, the president, in a special message, asked congress to empower him to alter or abolish revenue districts, to remove custom houses, and to use the land and naval forces for the protection of the revenue officers against attempts to recover property by force. A bill to enforce the tariff was therefore at once introduced, was instantly nicknamed the "bloody bill"—sometimes the "force bill"; and the debate upon it not only overlapped the dreaded date, Feb. 1, 1833, but lasted until the end of the month. It became law March 2, 1833.


—On both of the issues which South Carolina had forced, the state had evidently been beaten. In spite of the solemn promulgation of the unrepealed ordinance of nullification, the duties had been collected as usual after Feb. 1; force had been applied, and yet the state had not seceded. A private "meeting of leading nullifiers" in Charleston had indeed decided, late in January, that the enforcement of the ordinance should be suspended until after the adjournment of congress; but certainly it will not be pretended that a meeting of private citizens, even of "leading nullifiers," could have any authority to "suspend" a part of the organic law of the state. That would have been nullification in naked deformity—nullification even of state law by individual citizens. It is beyond a doubt that the ordinance would have been relentlessly enforced on the appointed day but for one consideration—the attitude of the executive.


—On the other hand, the tendency in congress, from its first meeting in December, 1832, had been toward a modification of the tariff. Many distinct influences were at work in this direction. The rapid reduction of the debt and the probability of a surplus weighed heavily with some; many democratic representatives were by nature opposed to the principle of protection, had only taken it up because of their constituents' desire for it, and were now very willing to make "the crisis" an excuse for overthrowing it; the president's own influence had been thrown heavily in favor of a revision of the tariff; and many even of those who were honest protectionists, were disposed to lessen the magnitude of the crisis by sacrificing protection. In the house the committee of ways and means reported, Dec. 27, 1832, the administration measure, usually called the Verplanck bill, which cut the duties down to the scale of 1816, giving up all the protective duties of 1824, 1828 and 1832. Feb. 12, 1833, Clay asked permission in the senate to introduce a compromise tariff bill. Its main features were that, after Dec. 1, 1833, all ad valorem duties of more than 20 per cent. should be reduced one-tenth every two years until June 1, 1842, at which date the rate of 20 per cent. should be the maximum. Calhoun, who was now in the senate, agreed to the bill, assigning as a reason his desire not to injure manufactures by too sudden a reduction. The bill, assured of the support of both protectionists and nullifiers, seemed certain of success, when Clay, Feb. 21, sprung upon the nullifiers an amendment by which duties were to be paid on the value of the goods in the American port, not in the foreign port of exportation. Up to this time the house was still debating the Verplanck bill; but, Feb. 26, by a vote of 119 to eighty-one, the house passed the bill which Clay had introduced in the senate.


—Everything now rested with the senate. The nullifiers there found Clay's amendment extremely distasteful, since the levying of duties on the higher American valuations was in itself protection, and on the last day but one of the session announced their final resolution to refuse to vote for it. The protectionists declared the nullification vote to be a sine qua non, and their leader, Clayton, of Delaware, moved to table the bill, acknowledging that it was his intention to kill it, and leave South Carolina and the president to decide the enforcement of the existing tariff. Clayton was induced to withhold his motion until the next day; in the meantime he was importuned to release Calhoun at least from the necessity of voting for the Clay amendment; but he insisted upon either the whole nullification vote for the Clay amendment, or the failure of the entire bill. The next day Calhoun unwillingly voted for the whole bill, covering his retreat by an unmeaning declaration that his vote was only given on condition that some suitable method of appraisement should be adopted. The whole bill passed the senate by a vote of twenty-nine to sixteen, and was signed by the president March 2. The South Carolina convention, March 16, met and repealed the ordinance of nullification.


—It can not be doubted that the country lived for the next nine years under a progressively less protectionist tariff, nor that the reduction of the tariff was in great measure due to the attitude of South Carolina. There is far more doubt as to whether it can be fairly said, as it has sometimes been said, that "nullification triumphed." On the contrary, it might be more fairly said that the explosion, while it stunned protection for the time, killed nullification forever. Calhoun's new constitutional scheme had aborted in every point: it had not been put in force at the appointed time; it had received no respectful recognition from the federal government; the president's "harassing of the state's commerce" had been followed, not by secession, but by an illegitimate and unofficial "suspension" of the ordinance; no convention of the states had been called to decide between the state and the government; but congress and the president, interpreting their own powers, had revised the tariff at their own discretion. Nullification was evidently still-born, though the good nature of congress gave an opportunity to perform the last rites of sepulture over it by formally repealing it. It was so dead that its own parent never again ventured to hint a hope of its revivification; and when the protective tariff of 1842 was passed, neither Calhoun nor any one else suggested a nullification, but South Carolina, like other anti-protective states, quietly submitted until a change of parties brought the revenue tariff of 1846.


—It is not at all certain that the final settlement of the question, however its immediate wisdom may be questioned, was not for the greatest ultimate good of the country. On the one hand, if congress had forced the issue with the state, the question of state sovereignty and primary state allegiance would have been settled by Jackson in 1833 with the expenditure of far less blood and treasure than was expended in 1861-5. On this ground mainly, that it was not proper to yield great principles to faction, and that "the time had come to test the strength of the constitution and the government," Webster had refused to have any share in the remedy of a compromise tariff. On the other hand, it is equally certain that a conflict on such grounds would never have rid the south of the incubus of slavery. It was well that the conflict was postponed until state sovereignty and slavery, inextricably involved in a common purpose, should perish by a common disaster. (See, in general, KENTUCKY RESOLUTIONS, STATE SOVEREIGNTY, PERSONAL LIBERTY LAWS, NATION, SECESSION, SLAVERY.)


—See 1 von Holst's United States, 459; 3 Spencer's United States, 389; 43 Niles' Register; 10-12 Benton's Debates of Congress; 6 Calhoun's Works, 1 (South Carolina Exposition); Jenkins' Life of Calhoun, 161; 4 Elliot's Debates, 509; Appleton's American Cyclopœdia (edit. 1858), art. "Calhoun"; 1 Stephens' War Between the States. 421; 1 Draper's Civil War, 453; 3 Parton's Life of Jackson, 433; 3 Webster's Works, 343; 1 Curtis' Life of Webster, 433; 1 Webster's Private Correspondence, 529; Simms' History of South Carolina, 420; J. A. Hamilton's Reminiscences, 243; 1 Benton's Thirty Years' View, 342; Harper's Magazine, August, 1862; Hunt's Life of Livingston, 371; 2 Colton's Life and Times of Clay, 223; Clay's Private Correspondence, 347; the tariff of 1832 and Clay's compromise tariff are in 4 Stat. at Large, 583, 632; the ordinance of nullification in 10 Benton's Debates of Congress, 30, 1 Benton's Thirty Years' View, 297, 43 Niles' Register, 219; the nullification proclamation in 4 Elliot's Debates, 582, 2 Statesman's Manual, 890; 43 Niles' Register, 231, 288; 2 Calhoun's Works, 197, 262; 3 ib., 140; 5 Clay's Works, 392.


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