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Jan. 29, 1833.]

Revenue Collection Bill.

(SENATE.

TUESDAY, JANUARY 29.

edly preparing to resist force by force. But, let the United THE COLLECTION BILL.

States withdraw its forces from her borders, and lay this

bill upon the table, and her preparations would cease. The subject again coming up

Mr. WILKINS resumed. That is, sir, if we do not opMr. WILKINS resumed his remarks on it. He com- pose any of her movements, all will be right. If we fold menced by stating that, on a proper occasion, he should our arms, and exhibit a perfect indifference whether the move one or two amendments to the bill, one of which laws of the Union are obeyed or not, all will be quiet! would be to limit some of its provisions to the end of the This, I admit, would be an admirable mode to avoid collinext session of Congress: the provisions which it contained sion and prevent disturbance; but is it one that we can for amending the judicial system, he presumed, there submit to The moment we fail to counteract the nulwould be no objection to leaving, as they are in the bill, lification proceedings of South Carolina, the Union is unlimited.

dissolved; for, in this Government of laws, union is obeWhen the Senate adjourned yesterday, (Mr. W. contin-dience, and obedience is union. The moment South ued, I was speaking of the tariff system-of this system Carolinafor the protection of American industry, which a vast Mr. CALHOUN-Who relies upon force in this conportion of the American people believe to be intimately troversy? I have insisted upon it that South Carolina connected with the prosperity of the country. As a justi- relied altogether on civil process, and that, if the General fication of the adherence, as far as practicable, to this Government resorts to force, then only will South Carolina system, he bad had reference to the conduct of gentlemen rely upon force. If force be introduced by either party, from the South in regard to it. At one period, he now upon that party will fall the responsibility. added, Maryland had been considered a Southern State, as 'Mr. WILKINS--The General Government will not she was still a slave-holding State: from the chief city of that appeal, in the first instance, to force. It will appeal to State, directly after the meeting of Congress, under the the patriotism of South Carolina-to that magnanimity of constitution of 1787, a memorial was transmitted to Con which she boasts so much. gress, reciting the weakness and inefficiency of the old Mr. CALHOUN.-I am sorry that South Carolina confederacy, and its inadequacy to protect the manufac- cannot appeal to the sense of justice of the General Goturing interests, and rejoicing that we had now a Govern-vernment. (Order! Order ! from one or two members. ] ment possessing all the necessary power to protect Mr. WILKINS.--The Government will appeal to that domestic industry, and praying the interposition of Con-political sense which exhorts obedience to the laws of the gress for that purpose. Another incident he mentioned, country, as the first duty of the citizen. It will appeal to which, be said, many members would recollect, of a mem- the moral force in the community. If that appeal be in ber of Congress from South Carolina having, in the year vain, it will appeal to the judiciary. If the mild arm of 1809, offered a resolution proposing that all the members the judiciary be not sufficient to execute the laws, it will of Congress should appear, at the commencement of the call out the civil force to sustain the laws. If that be innext ensuing session, clad entirely in clothing of American sufficient, God save and protect us from the last resort!. manufacture. He had already adverted to the agency of But if the evil does come upon the country, who is rethe South in passing the tariff law of 1816, and now, said sponsible for it? If force be brought in to the aid of law, he, let me make a personal reference, in connexion with who, I ask of gentlemen, is responsible for it to the peoit, to another gentleman from South Carolina, now a ple of the United States? That is the question. Talk of member of this body, (Mr. MILLER;] which reference 1 it as you please, mystify matters as you will, theorize as make with all possible respect for that gentleman. When you may, pile up abstract propositions to any extent, at the bill of 1816 was under discussion, that gentleman, last the question resolves itself into one of obedience or then a member of the other House, made a motion, deeply resistance of the laws-in other words, of union or disinteresting to Pennsylvania, and for which I, as one of her union. Wherein (said Mr. W.) consists our liberty? What sons, feel grateful to him, to raise the duties on hammer- is the foundation of our political institutions which we ed bar iron (which the bill proposed to raise from nine to boast of, which we hold up to the world for imitation, sixteen dollars per ton,) to twenty dollars per ton. Thus and for the enjoyment of which the votary of freedom amended, the bill passed the House, but the duty was re- pants in every country of the globe--what is it? It is that duced in the Senate to sixteen. On the final passage of of a Government where the people make the laws, and the bill, including that and other duties, three members where the people obey the laws which they themselves only from South Carolina were present, and they all voted have made. That is eur system of Government, and by a for the bill. Strange revolution of opinjon! It is now large majority of the people it is respected accordingly. contended by the same gentleman that a duty of eighteen Why, sir, (said Mr. W.) if you were to carry into effect the dollars upon the same article, (two dollars below her own ultra doctrine of South Carolina at this moment, repeal proposition,) as fixed by the tariff of 1832, is so onerous, your whole protective system, shut up our factories, stop oppressive, and tyrannical, that the whole country is to our wheels, extinguish our fires, &c.---nay, ruin us by be involved in a civil war, if not only that, but every other your legislation--yet would the people of Pennsylvania protective duty be not abolished !

Tobey the laws, and abide your decision. But then they Mr. W. said he had also spoken, yesterday, in justifi-would appeal to the people; they would endeavor to bring cation of the strongest provisions of this bill, of the talked public opinion to act upon Congress, and bear them back of resistance to the laws in South Carolina. He had un into the right course. They would appeal to moral influderstood the Senator from South Carolina, (Mr. Calhoun,] ence, and to that alone. " the other day, as acknowledging that there was military I know (said Mr. W.) that the gentleman from South array in South Carolina, but contending that it followed Carolina cannot anticipate the application of force in the and did not precede the array of force by the United States. case now presented ; but I pray him, again and again, to

Mr. CALHOUN said he bad admitted that there was advert to one particular paragraph of the ordinance. military preparation, not array.

There were several cases in which the use of force is reMr. WILKINS said, if we examine the measures taken ferred to in the ordinance, in which Mr. W. admitted the by the administration in reference to the present crisis, it right to use it. If, for example, as in a case supposed, would be found that they were not at all of that military Congress intended to overrun and subdue the State of character to justify the measures of South Carolina which South Carolina, and overturn their liberties, he admitted it was alleged had followed them..

the right of resistance by force. But, come down to the Mr. CALHOUN said that South Carolina was undoubt. contingency in which the ordinance declares that force

SENATE.]

Revenue Collection Bill.

[Jan. 29, 1833.

shall be used, and it is in the event of the attempt by which is the only taxation known to our laws; and the the United States to enforce the execution of the reve- people of the rest of the Union are compelled to pay nue laws. “Enforce" is the word employed by the taxes. South Carolina participates in the benefits, but ordinance. For the meaning of this word it was not ne- not in the burdens of the Government. The ordinance, cessary to resort to Johnson or Webster : the law may be to this effect, South Carolina is pledged to maintain; and “enforced” by execution, by judicial process, by a simple it declares that no power shall prevent free ingress and demand of payment of duties by a United States' officer. egress into and from her ports. Every stream of water It needs not the iron grasp of power, the naked sword, or in the limits of the State, accessible from the ocean, is the fixed bayonet, to constitute enforcement of the laws. made a free port. Wherever goods are introduced and You enforce the laws every day, and every hour of every landed, all obligation to pay the duties vanishes before the day, in the most tranquil state of society. This enforce- magical influence of nullification. ment of the laws it is which is, after the 1st of February, The State of South Carolina is, quoad the revenue laws, to be construed into an attempt to put down the people out of the Union. As to the revenue system, our fellowof South Carolina, and to justify the calling forth of thou- citizens of South Carolina are gone from us. What, sands upon thousands of armed men to resist it.

then, is to prevent the goods imported into the State from Mr. W. here referred to the Charleston Mercury, which being distributed into every part of the interior and along he held in his hands, containing the proceedings of a the coast? A legalized system would be introduced-he great meeting held at Charleston, South Carolina, on the would not say of smuggling, for he would not impute so 21st instant, among which were a number of resolutions, opprobrious a crime to the authorities of that State; but adopting the cockade to which he had reference yesterday, free ports make free goods, and nullification makes free intermingled with notices of “Call to arms!” "Attention, ports. Well, sir, what will prevent the goods from volunteers!” &c.; and one of these resolutions (which he being sent to other States? Take the marks off from the read) declares that the persons assembled at this meeting goods, and they may be sent any where. If nullification not only affirm the right of the State peaceably to secede exempts goods from duties in South Carolina, it exempts from the Union, but are prepared, if needs be, to peril them every where. They are marked “State rights," their lives in the assertion of this claim, &c. Yes, sir, said and the vessel is called “State sovereignty.” They will Mr. W., if not prevented, secession is at hand; for the not be imported under the glorious flag of the Union, very moment that the marshal of the district calls out the but under the flag of South Carolina. South Carolina posse comitatus, and heads that posse to enforce a judg- has got her ordinance. Now we shall see how she will ment of the federal court to compel the payment of put it in execution, how it works practically. It will make duties on imports, (after thelst of February,) then has the general confusion, defeat equality in public burdens, and contingency occurred of an attempt to enforce the laws; demoralize the community. then has secession become the alternative. With regard As nullification is now about to go into full operation, to secession, Mr. W. went on to cite cases to show the what is to stay the hands of South Carolina, and prevent consequences to which the admission of this right in any her from executing her present purpose! He was aware State would lead, should other States adopt the heresy of the wide range of discussion which the question conaffirmed by the meeting whose proceedings he had read. nected with this subject would lead to. But this was This view of the subject he followed by saying, that nul- the time for bringing those questions before Congress lification, unless merged in revolution, was not to be for decision. They should decide now, in one way or stopped. The honorable member had told the House, other. I am young and stout, said Mr. W., and am wilthat laying this bill on the table, and passing the bill de- ling to see the question tried, and to abide the end of pending in the other House, would put a stop to nullifica- it. The whole question comes to a single point. What tion. But what surety was there even of this? After is the constitutional relation of a single State to the United the 1st of February, nullification, with all its attributes States? If the Government is merely an “alliance of and incidents, was to be in full operation in South Caro- States, a federal league between several distinct and inlina. What would be its political operation? Where dependent sovereignties, from wbich any one may withwould it end? He put this question plainly to the gentle draw, there is an end of the question and of our bill. man from South Carolina. A convention of the States For South Carolina, leaning upon her sovereignty and was out of the question; an amendment of the constitu- reserved rights, has exercised the power which she tion was out of the question-where was the contest to claims of obeying and disobeying a law of the Union, end? Why, the laws must be suspended. South Caro- just as she may construe it to be constitutional or unconlina, whilst represented on this floor, (ably as she is, and stitutional. he hoped long would be,) participating in the making of An attempt on his part to throw any additional light laws, would be obeying just such of them as she pleased, on this subject would be as unnecessary as to contribute and no more-cutting and carving with her own sword a drop of water to the ocean. It was enough for him that to suit herself! What a state of things was this!

he had a few well settled principles on this point, which (Mr. CALHOUN here said, that South Carolina would he had always entertained, and which had been acted on be content to maintain this contest upon the principle of from the foundation of the Government to the present protection, paying, without objection, whatever taxes time. The constitution was formed by the people. It might be required to be levied for the purposes of re-was adopted by the States, which, like individuals, survenue.]

rendered a portion of their sovereignty for the security Mr. WILKINS-If South Carolina appeals to the of the rest. Those powers which are thus surrendered, federal judiciary, she can bring up the question of the however limited in number, are supreme in extent and validity of any part of the revenue laws for decision, by application. The second paragraph in the 6th article of the federal courts. Mr. W. had no doubt of the influence the constitution was, as it appeared to him, framed to of the Senator from South Carolina over the people of meet this very case-to meet State legislation, State nulthat State, but no one had power to say what course that lification to meet the case of State legislation which atState would take if the suggestion of the Senator should tempts to overthrow national legislation. be adopted. We must take this matter as we unfortu-! « This constitution, and the laws of the United States nately find it. The merchants of Charleston may import which shall be made in pursuance thereof, and all treagoods free of duty, and the merchants of Baltimore, New ties made or which shall be made under the authority of York, &c. must pay duties. The people of South Caro- the United States, shall be the supreme law of the land, lina are exempt from all taxation by duties on imports, and the judges in every State shall be bound thereby.

Jan. 29, 1833.]

Revenue Collection Bill.

[SENATE.

any thing in the constitution or laws of any State to the by availing themselves of the replevin law; and it had contrary notwithstanding."

been doubted whether the force of the ordinance would This supremacy of power was necessary for the general be tried. But, as he had expected, the politicians, not welfare, because it consists in the use of powers which the merchants, had formed a plan for trying the expericould not be confined to, nor exercised by, any one State. ment. Preparations had been made to bring the question We always had a Union. The great object of the peo- to an issue as soon as the 1st day of February arrived. ple, from one period to another, has been to render the He had made a note of the questions which would arise Union “more perfect.” Virginia took the lead in the out of these considerations, but he would not detain the last attempt, and her statesmen were among its foremost Senate by noticing them. champions. Experience had manifested the want of a He would pass to the consideration of the provisions supreme power to bear immediately upon the people of in the bill. The first section of the bill contains provithe States. The laws of the old confederation bore on sions which are preventive and peaceful. Mr. W. then the States alone. Hence the constitution begins, “We, read from the first section of the bill, as follows: the people;" and the conclusion of the 8th section of the “ Be it enacted, &c. That whenever, by reason of un1st article, giving power to Congress “to make all laws lawful obstructions, combinations, or assemblages of perwhich shall be necessary and proper for carrying into sons, or unlawful threats or menaces against officers of execution the foregoing powers, and all other powers the United States, it shall become impracticable, in the vested by this constitution in the Government of the judgment of the President, to execute thé revenue laws, United States, or in any department or officer thereof," and collect the duties on imports in the ordinary way in and the emphatic conclusion declaring such laws to be the any collection district, it shall and may be lawful for the supreme law of the land, in the aggregate sense of the term. President to direct that the custom-house for such district

We owe allegiance both to the United States and to be established and kept in any secure place within some the State of which we are citizens. Are there, sir, any port or harbor of such district, either upon land or on citizens who owe no allegiance to the United States? board any vessel," &c.Have the people of South Carolina abandoned the proud It enjoins forbearance on the Executive, and gives him title of citizens of the United States? Has the General power to remove the custom-house to a secure place, Government any power or quality of political sovereignty where the duties may be collected. It leaves the ports at all? If it has, that power must be brought to bear di- and districts as they now are, open for the commercial rectly upon the people of the States, and of each State. convenience of the good people of the State; and even

The Government of the United States forms a part of the custom-house would not be taken from the port or the Government of each State, enters into it, and sup. harbor where it now is. Our object in removing the plies whatever may be wanting in State powers. You custom-house is to prevent all collision, if possible. The cannot bring about obedience to the laws, if their obliga. words “threats and menaces" do not run through the tions and binding force are not directly on the people. residue of the section. The power given in this clause is If the laws are brought to bear on the States, they may not new; the clause is simply declaratory of the existing wrap themselves up in their sovereignty and their re- law, as it has been held by our courts; for it has been deserved rights, resort to nullification, and, claiming the cided, that where it is impossible to collect the duties, the power to put their veto on the acts of Congress, they officers of the customs may remove the custom-house. may overthrow your whole system of legislation. This The next paragraph provides for the cash payment of doctrine impairs not the sovereignty of the people. The duties under circumstances which render it impossible to people retain their soyereignty in reference to the United collect the duties in the ordinary way. This is no great States as well as to their respective States. They act matter. We have already abolished the credits on duties here as well as in their State Legislatures. Whenever you to some extent, and this law carries out the system farther. exercise one of your great constitutional powers, the Why should the practice of taking bonds be persisted in people act here, and are therefore bound by the law when they say they are not bound to pay the bonds. It which they themselves made. This is the perfection of is a mockery to take bonds when the constitution and the political institutions. The people make the laws, and law release the people bound from the obligation of the the laws govern. The States are secure in their rights, bonds. Suits must be brought to enforce the payment of and always were secure. He admitted their original ab. the bonds, and the authority of the State and federal trisolute sovereignty; but, as he had said before, they yield-bunals would thereby be brought into conflict, which ed up a portion of that sovereignty for the general good. conflict the bill sought to avoid. The 62d section of the

This is a constitution of power “granted,” as a law. act of the 20 March, 1799, refuses credit to merchants yer would say, “for a valuable consideration." By the who have refused to pay their bonds. The same princigrant of these powers, you created the constitution of the ple is applied to the present case, where people are Union. You cannot take them back at pleasure. Here combined to prevent the payment of bonds. are we asked--can the creature be greater than the The third and remaining exigency provided for in this creator? No. But the creator may be bound by the act first section is the authority to employ the land or naval of the creature; the principal may be bound by the act forces, or militia. This provision is entirely defensive. It of the agent, if the agent acts in pursuance of delegated merely confirms the authority for the protection of the power, particularly when the interests of third persons custom-house and revenue officers. The simple question are concerned. We say to South Carolina, our prosperity lis-do you require obedience to the laws? How can you depends upon the permanence of a system which you make the people of South Carolina pay the duties? The created; and you cannot take back the power which you custom-house officers are not sufficiently numerous to gave to your agents to exercise.

enforce obedience to the laws; pains, penalties, indictOn the subject of practical nullification, Mr. W. said ments, all hang over the head of that man who is bold he had made some notes, and the very circumstances enough to exact payment. The Legislature forbids the which he had anticipated bad happened. From a late enforcement of the law; and he who attempts to enforce number of the Charleston Mercury, which he held in his it must suffer the penalty of the law as surely as he is conhand, he read an account of a great State rights meeting victed of the offence. The marshal, in this stage of the at Charleston, whereat resolutions were adopted for form- business, cannot interpose. The militia cannot be called ing companies to import goods free of duty. The mer-out, for the best reason in the world--that they are comchants of South Carolina would, it was thought, be reluc-mitted in support of the other side of the question. Now tant to hazard their commercial credit and convenience what is to be done? It is the duty of the President to take

VOL. IX,--17

SunATE.]

Revenue Collection Bill.

(Jan. 29, 1833.

care that the laws shall be executed. He is invested with house officer and carried off; and if he attempt to recapthe power by the constitution, and the public hold him ture them, he is liable to a fine of ten thousand dollars, responsible for its exercise. You can vest the power no and two years imprisonment. No such indictment is subwhere else. The first section of the second article of the ject to traverse; that is, the accused shall not cross it; he constitution invests the President with the executive shall not deny the facts alleged; he shall not plead “not power,” and he is required to take an oath faithfully to guilty.” This is the technical effect of refusing a traverse. execute the office and preserve the constitution. The But can the word be taken in that sense in South Carolina? second section of the same article makes him the com- Perhaps the word, as used in the ordinance, has a meanmander-in-chief of the army and navy of the Uniteding peculiar to the South. States, and of the militia, when called into actual service. Mr. MILLER explained. The word had a peculiar The only question is-is it necessary to give these means meaning in South Carolina. At the first court the acto enforce the laws? If we intend to enforce obedience cused could traverse, but he had no right to continue the to the laws, these powers must be given, and no where action. The ordinance denied the right to the accused can they be constitutionally lodged but in the President. to continue the case after the first term, except for cause We give Andrew Jackson power simply to execute, for a shown. The ordinance, in creating this misdemeanor, limited time, the revenue laws of the country. Well, we merely applies to it the legal forms which in that State confide this power to a man who has never abused any apply to all misdemeanors. power reposed in him. He said that these proceedings Mr. WILKINS.-It was apparent that the constitution were long anticipated. They were the subject of discus- of the courts in South Carolina makes it necessary to give sion during the late Presidential contest. Every vote had the revenue officers the right to sue in the federal courts. an eye to the South. He spoke this with respect to the It was not intended to restrict this right to any amount in other candidates, all of whom he knew would have sup- controversy, nor to citizens of other States. it falls under ported the constitution. He made no invidious distinctions. the clause of the constitution which gives jurisdiction to

Why did South Carolina throw away her vote on a dis- the United States' courts in all cases arising under the tinguished individual, who was not a candidate? With an constitution, treaties, and laws of the United States. He eye to this question. Why did the people of the United would put a case in a few words: Suppose the collector States vote for Andrew Jackson?' with a view to this of the port of South Carolina is prosecuted. He is carried same question. For this provision in the law there was to prison, or the capias in withernam is issued against a precedent, to which he would refer. The act of 9th him. His property is carried off and sold. The case January, 1809, sec. 11-13, vol. 4, p. 194-5, to enforce comes before the State court. He sets forth that, under the embargo, &c. The 2d section of the bill extends the the laws of the United States, he was obliged to do his jurisdiction of the circuit courts in revenue cases. It duty. On the other side, it is said that the laws of the gives the right to sue in these courts for any injury United States had been nullified; and the State laws had incurred by officers, whilst engaged under the laws of taken their place. Out of this issue springs a case proviCongress in the collection of duties on imports. It de-ded for by the bill. But it is objected that the case will clares that property taken under the authority of the laws arise under the State law. But, shape it which way you of the United States shall be irrepleviable, and only sub-may, the case arises out of the laws and constitution of ject to the order and decrees of the courts of the United the United States, and the judicial power extends to all States; and it gives the penalty for the rescue of the pro- cases in law and equity. It ought to be so. There ought perty as is prescribed by the act of 30th April, 1790, sec. to be a judicial power co-extensive with the power of le22, vol. 2, p. 95. The provisions of that law make the gislation, and a co-extensive executive power. Without penalty not to exceed three hundred dollars, and impri- this co-extensive power, legislation would be useless in a sonment for three months. This section has two objects free Government. Neither domestic tranquillity, nor uniin view: first, it gives power to the officers to sue in the formity of rules and decisions, can be secured without it. federal courts; and second, it provides that they shall It may be said, (continued Mr. W.) that in this way you not be dispossessed of property seized by them under the overturn the State legislation, and that they ought to give laws of the General Government, without the authority of their own direction to State controversies. So they may; the courts of the United States. The object of this sec- but let them not come in collision with the constitution tion is to meet legislation by legislation. There is nothing and laws of the Union. In every controversy within any in this provision shocking or harsh.

State, arising under a State law, coming in collision with The laws of South Carolina, made to enforce the ordi- the constitution, or with a law of the United States, the nance, are harsh and oppressive beyond any of the feudal federal courts have appellate jurisdiction. He felt himlaws. Under the replevin act of South Carolina, the self too much exhausted to read a case or two to which goods are first seized; if they are not given up, the return he desired to call the attention of the Senate. But he is made, and a capias in withernam issues; there is then a meant to content himself with a mere reference to the suit to recover back the duties; the custom-house officer case of Martin vs. Hunter's lessee, in 1st Wheaton, p. cannot remove the suit to any other court, and the judges 304, and the case of Cohens vs. the State of Virginia, 6th and jurors who are to decide the case are under oath to Wheaton, p. 584, where this point had been decided. If support the ordinance. For this misdemeanor the officers appellate jurisdiction be given, the original could not be are subject to a fine of five hundred dollars and two years desired. All the residuum of jurisdiction remaining, after imprisonment. And they are liable to have their own the original jurisdiction given in specified cases to the property, to double the amount of the goods seized, taken Supreme Court, might be exercised in any way by the and carried away. Every professional man knows to what inferior courts that Congress might direct. These obcases a replevin law is usually confined. It views the servations were applicable to the third section of the bill, custom-house officer, while discharging his duty, as a tres- which also provides for the extension of judicial jurisdicpasser. If the replevy is not obeyed, the intermediate tion, by allowing the party or officer of the United States inquiry which the common law provides is discarded, sued in the State courts for executing the laws of the and a writ of reprisal issues. It is not left discretionary Union, to remove the case to the circuit court. It gives with the sheriff' to take enough to satisfy the demand; the right to remove at any time before trial, but not after but he is bound to take double the amount. There is no judgment had been given; and thus affects in no way the danger that this part of the law can ever be executed, for dignity of the State tribunals. Whether in criminal or in no one person will have property enough for so tremen- civil cases, it gives this right of removal. Has Congress dous a grasp. The goods are taken finally from the custom- this power in criminal cases! He would answer the ques. Jax. 29, 1833.]

Revenue Collection Bill.

(SENATE.

tion in the affirmative. Congress had the power to give fine of ten thousand dollars and five years' imprisonment this right in criminal as well as in civil cases, because the on any owner of a slave found in pursuit of him, and that second section of the third article of the constitution her jurors and judges are all sworn to regard this law, he speaks of "all cases in law and equity;" and these com- would ask whether the United States' courts could not prehensive terms cover all. He referred to the case of have jurisdiction in this matter. The power of the JuMatthews vs. Zane, 4th Cranch, page 382, which decides diciary would be entirely nugatory if it could be evaded that, if two citizens of the same State, in a suit in their by throwing the case into the form of a criminal proceedState court, claim title under the same act of Congress, ing. He referred the Senate to the cases of the United the Supreme Court has an appellate jurisdiction to revise States vs. Moore, 3d Cranch p. 159, where it was admitand correct the decision of that court.

ted that Congress might give the power; and to that of The decision was founded upon the principle that the Martin vs. Hunter's lessee, 1 Wheaton, p. 350-1, where 3d act of the constitution, considered in connexion with it was admitted that criminal are the strongest cases. the judiciary act of 1789, would not give it a more exten. The fourth section of the bill was merely matter of sive construction than it merited; and that the great ob- form. There was no constitutional principle involved in ject was, to render uniform the construction of the laws it. It only authorized the courts of the United States to or the United States, and decisions under them upon the supply the want of a copy of the record. It was intended rights of individuals; and in such case it was entirely to obviate the difficulty which was likely to arise from immaterial that both parties were citizens of the same the novel provision contained in the 8th section of the State.

replevin law of South Carolina, which makes it penal in It was admitted by Mr. Harper, counsel for defendant the clerk to furnish such record. This provision did not in error, that the exercise of jurisdiction in such case meddle with the penalty of the clerk of the State court, would be undoubted, if it was to maintain the authority but contented itself with providing means to supply the of the laws of the United States against encroachments deficiency. of the State authorities. The clause in the constitution The fifth section authorizes the employment of military to which he bad adverted refers to the character of the force under extraordinary circumstances too powerful to controversy, without regard to the parties, or the par- be overcome without such agency, and to be preceded by ticular form of the action. The object of the suit, and not the proclamation of the President. What he had already the tribunal, determined the jurisdiction. Was it to try said had reference also to this section of the bill. He the validity of an act of Congress? That question deter- would now merely refer the Senate to some precedents. mined the jurisdiction. Was it to try any indictment. The first precedent which he would notice was to be for treason? That question determined the jurisdic- found in the act of May 2d, 1792, vol. 2, p. 284, repealtion. It was more necessary that this jurisdiction should ed by the act of February 28, 1795, renewing the power be extended over criminal than over civil cases. If to call forth the militia, wbich act was still in force. This it was not admitted that the federal judiciary had ju- law grew out of the Western Insurrection in Pennsylvarisdiction over criminal cases, then was nullification nia. Like the present bill, although it was merely inratified and sealed forever: for a State would have nothing tended to meet that exigency, it was so framed as to conmore to do than to declare an act a felony or a misdemea. tinue in force. So the bill under consideration, although nor to nullify all the laws of the Union. There were nu- it had special reference to South Carolina, pointed not merous prejudices-prejudices peculiar to particular to her alone. If the opposition to the laws should ex. States, which, under any other view, would throw all ju- tend itself, and the spirit of disobedience should exhibit risdiction into the State tribunals.

itself, whether in the South or the North, the general Mr. W. would put a case to the Southern gentlemen, principles of the bill would be equally applicable. It was by way of illustration. It was one which they would feel an amendment of our code of laws to which the attention disposed to resent, and one to wbich he felt a repugnance of Congress had now been called, and which was render. to refer; but he would take it as illustrative of the opin. ed immediately necessary by the peculiarity of our preions he had thrown out. There was to be found in the sent situation. constitution a clause which gives the right to the owner. The second precedent to which he would invite the of a slave to pursue him from one State to another, and attention of the Senate was the act of the 3d of March, to take him wherever he may find bim. Now it was 1807, vol. 4, p. 115, “ to suppress insurrections and obknown that there was in some States a strong feeling on structions to the laws,” and “to cause the laws to be duly this subject, and that particularly was this sensibility to executed.” That act authorized the President to call be found in the State of Pennsylvania, where it was car- out the land and naval forces to suppress insurrections, ried to a very great extent. In great party times, he &c. These were the objects for which then, as in the would suppose that a party in Pennsylvania rallied on this present bill, this extraordinary power had been conferred. great principle. Pennsylvania was covered over with Another precedent would be found in the act of Janu. zealous and highly respectable abolition societies. He ary 9, 1809, sec. 11, vol. 4, p. 194, to enforce the emwould suppose that Pennsylvania carried these feelings bargo, and which gives the power to employ the land and to such an extent, as to pass a law to nullify this clause in naval forces, in general terms, to assist the custom-house the constitution. He stated that he had, in the judicial officers. There was at that moment a great excitement, station which he had occupied, had cases brought before although nothing like the solemn position in which South him for decision, in which he had felt it to be extremely Carolina has now placed herself. Yet it was deemed exdifficult to keep down this feeling. It had been even pedient to confer on the President this power. contended before him that the pursuit of the slave by He would now refer to the last precedent with which his owner into that State was an unconstitutional act. He he should trouble the Senate. It so happened in the would suppose that Pennsylvania was to pass a law, de-history of Pennsylvania, that that State took from Virclaring that the moment a slave sets foot on her soil, helginia a strip of land bordering on the Alleghany and Ohio shall be at once elevated to the rank and privileges of a rivers. On this strip of land, where Virginia had been freeman, and that thus she should nullify the clause in the accustomed to exercise jurisdiction, for which she had constitution on this point.

opened the titles, and where she had held her courts, It would be deemed very hard by the Southern gentle. there arose an insurrection. This had been called the men that they could not try the question of the constitu- Western Insurrection, but it was a singular fact that it tionality of that law before the Supreme Court. And if was confined to this narrow strip of land which Pennsylthe State of Pennsylvania were to pass a law imposing a vania took from Virginia. The President was then author

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