A critical study of nullification in South Carolina

Front matter

-I /I V

.5-^

A

Preface

THE nullification movement with which this monograph deals derives its chief interest from the terrible issues of 1860-65, which were its logical outcome. The secession movement dates definitely from 1824. In the period from 1824 to 1832 all the principles that were fought for in the Civil War were formally enunciated in South Carolina, and a determination to apply them, if it should become necessary, was repeatedly expressed. Secession became a subject of daily thought and conversation ; and familiarity with it bred contempt for its possible dangers. Further, in this period the bearing of the institution of slavery on political and economic issues became clearly recognized both in the North and in the South ; the fears of the Southerners for the safety of the institution were awakened, and their passions were raised to the highest pitch. By 1832 the feelings of the majority of South Carolinians were alienated from the Union. The State remained in the Union, it is true ; but her ordinary attitude towards it from this time was one at least of indifference. Many vi PREFACE.

of her wisest and most far-sighted citizens felt that the final struggle was only a matter of time, — only a matter of arousing the more conservative Southern States.

The writer has not here undertaken to discuss nullification in all its aspects. It would have been extremely tedious to go over the ground that has been covered in a masterly way by the great constitutional writers and speakers of the past and present. His aim is principally to look at the movement from within, to trace its origin and development inside the boundaries of South Carolina, and to discuss the validity of the leading doctrine in the light of the precedents on which the nullifiers mainly relied and of South Carolina's earlier history. Most of the existing accounts of this subject are incomplete and unsatisfactory, because their authors, writing from the outside, and as a part of a more general work, fixed their attention to an unwarranted extent on the doings of certain conspicuous public men from South Carolina, whose motives and conduct were assumed to be truly representative. The present writer has attempted to place these so-called leaders in their proper perspective, to trace the growth of popular feeling and to estimate its influence. While his attempt is not satisfactory even to himself, still he feels that the subject stands out in a truer light when viewed from within. His study of this particular movement from the point of view here indicated confirms his early impressions that many periods of American history

PREFACE. vii

must be rewritten after careful investigations have been made of tendencies and developments within particular States or groups of States. The results of this investigation seem to differ in several important respects from the conventional, accepted views, and are presented with due deference to possible criticism. Errors of fact and judgment will doubtless be pointed out, and will gladly be corrected.

The materials on which the account is based were collected while the writer was a member of the Graduate School of Harvard University, under the special oversight of Professor Albert Bushnell Hart, to whom many obligations are acknowledged.

DAVID FRANKLIN HOUSTON.

University of Texas, Austin, June I, 1896.

Chapter I. Pagk

Broad Construction in South Carolina, i 789-1823 ... .1

CHAPTER n.

Theories of the Constitution in South Carolina, i 789-1828 16

CHAPTER HI.

Causes of Nullification. 1823-1828 33

CHAPTER IV.

South Carolina's Change of Attitude. 1823-1828 .... 53

CHAPTER V.

Formulas of Nullification. 1828-183 2 65

CHAPTER VI.

Progress of Nullification Sentiment. 1828-183 2 .... 86

CHAPTER VII.

The Issue Joined. 183 2-1 833 106

CHAPTER VIII.

Significance of Nullification 134

APPENDICES.

A. Calhoun's Statement OF HIS Constitutional Principles. 1824 143

B. Ordinance Nullifying the Force Bill. 1833 .... 149

C. Protest against a Protective Tariff. 1840 151

D. Protest against the Tariff of 184 i. 1841 152

E. Nullification Reaffirmed. 1842 . . . . '. . . . . 153

F. Protest against the Tariff of 1842. 1844 154

G. Bibliography of Nullification 156

Index ifli

ix

A CRITICAL STUDY

OF

NULLIFICATION

IN

SOUTH CAROLINA.

CHAPTER I.

BROAD CONSTRUCTION IN SOUTH CAROLINA. 1789-1823.

The accepted accounts of the famous episode which Influence of this monograph attempts to describe furnish evidence fxtgg^ated of a tendency of American historians, in their study of our great political movements ; they lay undue stress on the personal element ; they pay much attention to individuals and comparatively little to conditions. It is not difficult to comprehend why such should be the case. To observe the movements of the masses under favorable conditions is by no means easy; it is impossible to follow them in a distant and crudely developed community unaccustomed to record-keeping. The conduct of a man of marked individuality at the centre of the nation's political activities lies in stronger light, and every act appears to the observer to carry with it special significance.

South Carolina, the centre of the nullification movement, has never laid herself open to the charge of extravagance in expending energy or money in making

BROAD CONSTRUCTION TO 1823.

[Ch. I.

Illustrated in accounts of nullification.

South Carolina to 1820.

Object of the movement to prevent centralization.

for posterity careful records of her own great deeds or those of her great men. She has been as backward in preserving records as she has been forward in furnishing acts worth recording. And during the period in question she was represented in the eyes of the nation by a man of remarkably strong individuahty. Hence, to every historian of the time the nullification movement has been Calhoun first, Calhoun last, and Calhoun all the time. One writer, for example, goes so far as to represent the movement as a petulant outburst of a schemer, soured and embittered by his disappointment, who preferred to be the first statesman in the Slave States rather than the second in the Union ; and who with singular ability addressed himself to the promotion of sectionalism.^ Without wasting time in criticising this misrepresentation, and others of its kind, we may proceed at once to consider the true character of the movement, — its causes, its progress, its effects.

To execute this task properly, it is necessary to go back as far as 1789 and to notice briefly the course of federal legislation and the attitude of South Carolina down to about 1820, when an organized opposition to the course of the federal government began to make itself felt in that State. This review will serve as a background for the whole discussion ; for it will tend to make clear that the nullification movement, instead of being the outcome of personal spite or disappointment, was the natural result of an attempt of a central body to legislate for a country having two large sections whose social and industrial conditions were radically different.

The nullification movement was set on foot to check what was believed to be the tendency on the part of the federal government to centralization, and to more active interference in every direction. The leaders in South

1 J. W. Draper, Civil War, I. 381.

1789] IMPORT DUTIES. 3

Carolina were convinced that the policy already entered upon by the federal government was destructive to the interests of the South ; and they had no doubt that such a policy, if persisted in, would lead to the impoverishment of their section and to the disruption of all its institutions. They therefore began, about 1820, to Attack on organize their followers in opposition to every step that po°ky.'*^^ tended directly or indirectly towards centralization. Chief among the measures that gave evidence of such a tendency were those looking to the strengthening of the National Bank, the extension of internal improvements, and the raising of protective duties. Inasmuch as the protective policy seemed to be most aggressive, and most clearly and immediately harmful, it was selected as the principal point of attack. It is to the tariff policy of the federal government, therefore, and to the attitude of South Carolina thereon, that attention must first be called.

South Carolina may fairly claim that her political South conduct has always been consistent at least in one opposition to direction, namely, in her opposition, not to import ^^^^ policy, duties as such, or to high import duties, where the necessities of the treasury demanded them, but to high import duties laid for the sake of protection. To those who may be inclined to question this statement it may be necessary to point out that the statement is made, not of Calhoun, but of South Carolina; for South Carolina and Calhoun did not always stand for the same thing. Against high import duties for the sake of protection, South Carolina entered her protest in the very first Congress, and it has stood to the present day. In the House, in 1789, we find Sterling Tucker urging members from other States to exercise liberality and moderation in their demands, and to desist from pressing measures " big with oppression and tending to bur-

BROAD CONSTRUCTION TO 1823.

[Ch. I.

Dissolution threatened, 1789.

High duties contested.

Attitude on the

constitutional question inconsistent.

den particular States." ^ But it was in the Senate that the most vigorous attacks were made on the proposed tariff legislation. When a report was presented recommending certain duties that were intended to be prohibitory, Pierce Butler, only lately arrived from South Carolina, took the floor, and, as Maclay, the eccentric senator from Pennsylvania, tells us, " flamed like a meteor. He arraigned the whole impost law, and charged indirectly the whole Congress with a design of oppressing South Carolina." ^ He threatened " a dissolution of the Union, with regard to his State, as sure as God was in the firmament."^

From this time down to 18 16, although no high tariffs were proposed, nevertheless whenever a proposition was made to increase duties for the purpose of affording protection to particular interests. South Carolina entered her protest. It has already been stated that the State did not oppose duties levied for the sake of revenue. We may go further: in this earlier period the State did not yet take a stand against the principle of protection or deny the constitutionality of its exercise. What she did contest was simply the expediency and justice of levying high duties for the sake of affording full protection to domestic, that is, to Northern, manufacturers. So far was she, in the earlier period, from denying the constitutionality of the principle of protection, that she was willing to allow a moderate application of it by way of compromise, and was not averse to the proposition to protect her own people in their attempt to grow hemp along her coast.* In this respect alone was South Carolina's conduct really inconsistent. In the earlier period, in fact down to 1823,

^ Annals of Cong., i Cong., i sess., 148 (1789-91).

* Maclay, Sketches of Debate in the First Senate, 75. 3 /hid., 77.

* Annals of Cong., i Cong., i sess., 155 (1789-91).

1789-1816.] SOUTH CAROLINA ON THE TARIFF. 5

her representatives in Congress based their objections to the principle of protection only on grounds of expediency and justice, tacitly admitting its constitutionality ; whereas, from that time on they vigorously denied the constitutionality of its exercise to any extent whatever.

It may perhaps be objected that the action of South Did repre- Carolina's leading representatives with reference to the sentatives_^ tariff act of 18 16 proves that she was not averse, for once at any rate, to high protective duties. On this point several answers might be made. The conditions at that moment were abnormal ; the measure was intended to assist in the transition from war to peace; it was not looked upon as the beginning of a system to be perpetuated and extended. But it is a sufficient answer that, at the passage of this measure, South Carolina and her representatives who voted for it parted company. Calhoun himself was severely censured for his part in the struggle ; and some of his constituents went so far as to charge that he had sold his State for the Presidency. He himself later admitted that even his friends thought he had gone too far.^

The dissatisfaction of South Carolina over the action The turning of Calhoun and others in voting for the tariff bill of P°'"*" 18 1 6 was the beginning of the end. It marks the time when South Carolina began to feel that the interests of the South were not identical with those of the North; that the general government was falling into the hands of Northerners, for whose unselfishness there was no guaranty ; that, in short, the powers of the government were likely to be stretched more and more along lines not laid down in the Constitution. One form of statement might be that it marks the time when South Carolina erased from her program liberality, breadth of view, and

1 Cong. Globe ^ 25 Cong., 2 sess., Appendix, 246 (1837-38).

6 BROAD CONSTRUCTION TO 1823. [Ch. I.

unselfishness, and wrote in their place niggardliness, narrowness, and selfishness; when she began to turn from union towards separation. From another point of view, it marks the time when, not South Carolina, but the other sections of the country which had secured control of aff'airs, changed their policy from a broad to a sectional one. From a third and higher standpoint, it marks the time when the less admirable qualities of both sections became conspicuous in a struggle for what each section believed, or appeared to itself to believe, was for its own interest, and also for that of the country at large. The liberal There is no questioning the truth that after 18 16 South

period, Carolina beean to change her attitude towards the policy of the general government, and, m fact, towards the union of the States. For some years a Federalist State, later a supporter of Jefferson, the Commonwealth had heartily indorsed the national administrations of the first quarter century. In fact, the people of the State were only following the leadership of a group of their own young and talented public men, William Lowndes, Langdon Cheves, John C. Calhoun, and David R. Williams. They had entered with enthusiasm into the war of 1812; and Jackson's victory at the end of that war had left them boiling over with nationality. One Fourth of July a year was hardly enough for their ardent patriotism. They were broad-minded, and intolerant of littleness wherever manifested. With Cal- Calhoun's houn, they had desired to see the nation pursue an enlarged policy. They were willing to undergo every necessary sacrifice for the sake of the security of the country and the advancement of the national interests. " The gradual increase of the navy, a moderate military establishment, properly organized and instructed, a system of fortifications for the defence of the coast, a restoration of specie currency, a due protection of those manufactures which had taken root during the period breadth.

X

1816-24.] CHANGE OF TARIFF ATTITUDE. 7

of war and restriction, and finally a system of connecting the various portions of the country by a judicious system of internal improvement," ^ — such were the measures which Calhoun could assert he had advocated down to the year 18 17, not doubting the disposition of his constituents to uphold him. They applauded his declaration that the Union ought to be free from ex- Liberty and

ternal danger and internal difficulty : ^ that the liberty Union

° _ •' ' ^ inseparable,

and union of the country were inseparably connected ;

that disunion comprehended the sum of political dangers.^ They felt with him that the rulers of America had been charged by Providence, not only with the happiness of a great and rising people, but, in a considerable degree, with that of the human race.*

When we consider South Carolina's attitude during the period down to 18 17, and in fact to 1824, on the more general subject of the interpretation of the Constitution, we shall find the most striking confirmation of what has just been said as to her broad spirit. The State countenanced a very liberal exercise of implied Exercise of powers; not only did she support measures which J^^g^s rested upon the doctrine of implication, but she also, advocated, through her representatives, championed the exercise of such powers in utterances of remarkable force. In fact, if they had been striving for effect, her most noted representatives could not have employed language that would have contrasted more strikingly with that the same men habitually employed after 1824.

It would be difficult to find views more liberal than Eidred those expressed by Eidred Simkins in 1818.^ He had

^ Calhoun at Abbeville, May 27, 1825, Niles Register^ XXVIII. 266.

* McDuffie's law partner, whom McDuffie was to succeed a few years later.

Simkins.

8 BROAD CONSTRUCTION TO 1823. [Ch. I.

no fears of a vague, indefinite assumption of powers, and least of all was he afraid of " a consolidation of state sovereignties, or a destruction of state rights, by men coming from and identified with the people of the States. This alarm of state rights has been gotten up and encouraged by gentlemen most strangely. It would really seem that both the State and the general governments were not the governments of the same people, identified by the same interests. . . . Such strict con- \ struction would launch us into an ocean of uncertainties,

and would fritter away all the Constitution worth pre- George serving."^ McDuffie expressed himself not less admira-

^24 "^^' ^^y several years later. His remarks are, in themselves, well worth quoting at length; and they are especially striking in view of the action of the South Carolina legislature the next year after his utterance. As late as February, 1824, we find him saying: —

" To lay it down as a general rule, that all municipal powers, not expressly granted to the general government, belong to the State governments, either renders nugatory most of the powers of this government, or it does not advance us a single step towards the decision of the question we are discussing.

"From this we are brought to the obvious conclusion, that the convention did not regard the State governments as sentinels upon the watchtowers of freedom, or in any respect more worthy of confidence than thp general government. . . .

" In determining whether a given subject of legislation should belong to Congress or to the State Legislature, the inquiry before the convention was, not which of these will be most likely to abuse the trust, but to which of them does it appropriately belong in reference both to their organization and to the great objects they

1824.] MCDUFFIE'S HIGHER PRINCIPLES. 9

were designed to accomplish. ... In this view of the Implied subject, I would lay it down as a general rule that all P'^^^''^- those subjects of legislation which concern the general interest of the whole union, which have a plain and obvi- \ ous relation to the powers expressly granted, and which a single State government cannot regulate, naturally belong to the general government, unless it can be shown that the regulation of these subjects by Congress impairs the powers of the State legislatures to regulate their own internal police. . . . But, sir, in giving a construction to a power of this description McDuffie's p'To establish post roads"! we must ascend to much "'^.'S'ler

■- ^ -' principles

higher principles than either law-books or lexicons can furnish. . . .

" Driven, then, from the ground of precise constitutional investigation, gentlemen have conjured up a phantom which they denominate Consolidation, and which I shall now endeavor to exorcise. ... If they mean by it a firm and indissoluble union of the States, I, for one, am decidedly in favor of it; but if they mean by it the annihilation of the State governments, or the destruction of a single power that appropriately belongs to them, there is no man who disapproves of it more, and, I will add, who fears it less than I do." ^

What was the attitude of the man who later came to Caihoun, be recognized as the leader and champion of the State '^''^° Rights party? How did John C. Calhoun stand on the fundamental questions of constitutional interpretation and of protection?

On the question of constitutional interpretation Calhoun had expressed himself superbly in 1817 : "He was no advocate for refined arguments on the Constitution. The instrument was not intended as a thesis

^ McDuffie's Speech in 1824, Annals of Cong., 18 Cong., i sess., 1372-1385 (1S23-24).

1512-20.

10 BROAD CONSTRUCTION TO 1823. [Ch. I.

for the logician to exercise his ingenuity on. It ought to be construed with plain good sense. ... If the framers had intended to limit the use of money to the powers afterwards enumerated and defined, nothing could be more easy than to have expressed it plainly. Our laws are full of instances of money appropriated without reference to enumerated powers." It is quite true that he said the Constitution was founded on positive and written principles, not on precedent, but still he introduced instances, such as the Louisiana purchase, "to prove the uniform sense of Congress and the country (for they had not been objected to) as to our powers ; and surely, said he, they furnished better evidence of the true interpretation of the Constitution than the most refined and subtle arguments."^ Calhoun, On the question of protection Calhoun declared him-

self repeatedly, in the years from 181 2 to 1820. That he did ably, pointedly, and repeatedly advocate governmental aid for the manufacturing interests is as useless for later generations to undertake to deny as it was for himself. In vain did he contend, in 1833, that his remarks on the tariff measure were impromptu ; that his expressions were unguarded ; and that the tariff then proposed was purely a revenue measure.^ He had committed himself to the principle of protection as early as 1814, to the extent of saying that " moderate but permanent protection " was " the great requisite to the due encouragement" of certain manufacturing interests,^ and that " he hoped to see manufactories encouraged by appropriate duties and had no idea of their being left without such protection."* Again, in January, 18 16, speakj8i2-20.] CALHOUN ADVOCATES PROTECTION. 1 1

ing on the general revenue policy which he wished to "Encouragesee Congress adopt, he advocated governmental inter- "actorks"""" ference, and distinctly repudiated " laissez faire" in the following words : " The question relating to manufactures must not depend on the abstract principle that industry left to pursue its own course will find in its own interest all the encouragement that is necessary. I lay the claims of the manufacturers entirely out of view; . . . but on general principles ... a certain encouragement should be extended at least to our woollen and cotton manufactures."^ The subject, he contended in a later speech, was connected with the safety of the country. Security, he argued, depends on the means of the country, and the means depend on the moneyed resources. Further, war would cut off agriculture and commerce from manufacturers. It was to be hoped that Congress would adopt a far-sighted policy ,2 All this was but a part of the broad policy which Calhoun, as has been pointed out,^ was, during this period, urging Congress to pursue. He wished to see the government act on an enlarged policy, take advantage of experience, and add to its reputation.

It was in this period that John Quincy Adams came john Quincy

in contact with Calhoun, and found him a model. " Cal- '^^^'"f.

on Calhoun.

houn is a man of fair and candid mind, of honorable principles, of clear and quick understanding, of cool self-possession, of enlarged philosophical views, and of ardent patriotism. He is above all sectional and factional prejudices more than any other statesman of this Union with whom I ever acted." * " Calhoun has no petty scruples about constructive powers and state

' See above, pp. 6-7.

* John Quincy Adams, Memoirs, V. 361.

BROAD CONSTRUCTION TO 1823.

[Ch. I.

Calhoun, 1831.

Calhoun, 1833- rights. His opinions are, at least, consistent." ^ Such was Calhoun down to 1822.

What a different picture Adams draws of him in 1831 ! Writing then, he says that during the early part of Monroe's administration Calhoun pursued a course *' from which I anticipated that he would prove ... a blessing to his country. I have been deeply disappointed in him, and now expect nothing from him but evil." ^ It is not at all necessary to accept this statement entirely as Adams intended it. It is quoted simply to show how, to a man who began political life as a warm admirer, Calhoun appeared to change. Adams could only with great difficulty recognize the broad patriotic statesman of 18 1 7 in the Senator who was well on towards the point where he could proclaim that he appeared, not as the representative of the whole people, but as a representative of one of the States of the Union, sent to watch over its particular interests, and to promote the general welfare so far as was constitutional.^ The Calhoun who advocated protection in 1814 and 1816 was very different from the Calhoun who, in 1833, embodied in formal resolution the proposition that Congress had no power to encourage manufactures, and that it could do no more than levy import duties to execute the inspection laws.^ Of course, it does not follow that Calhoun should be censured for advocating the tariff act of 18 16, and then turning about and opposing the measures that were offered later. It is not the part of true statesmanship to adhere blindly to a given policy: a statesman will note every alteration in the political and economic situation. Protection in moderation may be beneficial ; any further application of the principle may

^ John Quincy Adams, Memoirs, VI. 75. 2 Ibid., VIII. 411.

* Cong. Globe, 25 Cong., 2 sess., Appendix, 246 (i8l7-3'*^).

* Senate Documents, 22 Cong., 2 sess., I, No. 57 (1832-33)

1816,1831.] CALHOUN'S INCONSISTENCY. 1 3

be harmful. It was open to Calhoun to advocate the

tariff bill of 18 16 on grounds of expediency, and to Calhoun's

oppose that of 1828 on the same grounds; but he o"nth?tS

could not consistently assume in 18 16 that Congress

had power to levy protective duties, and then in 1828 /

utterly deny the existence of such a power. Yet he did

do precisely that; and his admirers will hardly succeed

in making his conduct at this time appear altogether

satisfactory. The truth of the matter seems to be that

Calhoun did not foresee what would be the consequences

of the policy inaugurated in 18 16. He had not felt called

upon to define his views, and to hedge them about. It

was not politically convenient for him so to do. It was

not till after the passage of the tariff act of 1828 that he

felt it necessary to define what really were his permanent

views.

In this connection it may be well to contrast Cal- Calhoun houn's earlier views on the question of slavery with °" ^ avery. those which he held after his " diligent scrutiny of the Constitution" in 1828, in order to show that his views had changed all along the line. In 1816 it covered him with confusion even to state the fact in Congress that it had been the plain intention of the Constitution to tolerate the slave trade till 1808. " He felt ashamed of such a tolerance, and took a large part of the disgrace, as he represented a part of the Union by whose influence it might be supposed to have been introduced." ^ It was an " odious traffic." Four years later, he was in favor of the Missouri Compromise.^ In the thirties, when the abolition struggle was on, we find him regretting that he had not followed the lead of Randolph in the Missouri Compromise struggle. At the time he had regarded Randolph as too uncompromising, but experi-

* Cong. Globe, 25 Cong., 2 sess., Appendix, 70 (1837-38).

BROAD CONSTRUCTION TO 1823.

[Ch. L

Calhoun on

Louisiana

purchase.

Precedents ignored.

ence had taught him his error; and now, in 1837, he would redeem himself by his devotion to an interest he had put in jeopardy in his less experienced days. He would proclaim that slavery, as it actually existed, was a good thing for the white as well as for the black ; and that, " in fact, the defence of human liberty against the aggressions of despotic power had been always the most efficient in states where domestic slavery was found to prevail." ^

One more specific instance of the radical change in Calhoun's views may here be conveniently mentioned. Attention has already been called to the argument in which Calhoun cited the Louisiana purchase as a precedent for appropriating money without reference to the enumerated powers.^ That reference he introduced, he said, " to prove the uniform sense of Congress and the country ... as to our powers." " And surely," said he, " they furnish better evidence of the true interpretation of the Constitution than the most refined and subtle arguments." As John Quincy Adams says: " Calhoun thought the case of Louisiana had settled the Constitutional question."^ It is almost impossible to believe that the following sentences, which occurred in the exposition drawn up in 1828 for the committee of the South Carolina Legislature could have been penned by the man who made use of the language quoted above. " In the absence of arguments drawn from the Constitution itself, the advocates of the power [to levy protective duties] have attempted to call in the aid of precedent. The Committee will not waste their time in examining instances quoted. If they were strictly in point, they would be entitled to little weight. Ours is not a government of precedent; nor can they be admitted,