1821-26.] FUNCTIONS OF THE SUPREME COURT.

29

and inconsistent rights." This pamphlet was written the year McDuffie and Hamilton took their seats in Congress. Only a few years later we find both these men among the most active in carrying into practice the principles here so strongly condemned.

Carolina on

Even these striking public expressions of well known South leaders do not complete the evidence. The represent- functions of atives of South Carolina on various occasions passed the Supreme Court. judgment upon the specific question as to whether the State or the Supreme Court was the final judge of the constitutionality of an act of Congress. Their decision was invariably in favor of the Supreme Court, and, so far as public records show, passed without protest from their colleagues or from their constituents. Such opinions were given at different times from 1798 to 1826, by no less distinguished representatives than Robert Goodlow Harper,1 John Rutledge, Jr., William Lowndes, and even William Harper, the able exponent of the nullification doctrine. In 1802, John Rutledge, speaking on a measure affecting the Judiciary, ably pointed out its function in our system: the people, he observed, could never have adopted the Constitution had they not regarded the Judiciary as co-ordinate with the Legislative and Executive, and as the check essential to the duration of the government; the State gov- Reverence for ernments reverenced the Judiciary as the fortress of their the Judiciary. safety. So long as it remained, there could not be much permanent oppression. The people through the Constitution had given the Judiciary power to declare unconstitutional laws passed by Congress in defiance of the Constitution. In 1820, William Lowndes remarked that it was foreseen by the framers of the Constitution that a State might attempt to break over the barriers

1 Annals of Cong., 5 Cong., 2 sess., 1991 (1797–99).

2 Ibid., 16 Cong., 2 sess., 515 (1820-21).

South Carolina Legislature national, 1824.

of the Constitution. Provision had been made for such a contingency. The Judiciary had been provided to settle such constitutional questions. But even more striking, perhaps, is the declaration of Senator Harper as late as 1826 that the Supreme Court was made by the Constitution the arbiter between the conflicting elements of our complicated system, and that its office was to restrain, not only the powers of the States, but also those of the general government; the Supreme Court was the guarantee of the Constitution.2

To turn for a moment to the South Carolina Legislature: In December, 1824, the tariff act passed by Congress in the spring of that year was brought to the attention of the Legislature and was referred to a committee of which Judge Prioleau was a member. A statement known as Prioleau's report was brought in; it declared that if the tariff bill was in fact a bill to encourage manufacturers at the expense of agriculture, it would meet with decided disapproval; "but whether the act be or be not unconstitutional, has not been decided by the only proper tribunal, the Federal Judiciary." The following very striking resolutions were thereupon adopted.

3

"Resolved: That the people have conferred no power upon their State Legislature to impugn the Acts of the federal government or the decision of the Supreme Court of the United States.

"Resolved: That any exercise of such a power by this state would be an act of usurpation.

"Resolved: That the Representatives of the people in Congress are only responsible under God to the people themselves."

1 Annals of Cong., 6 Cong., 2 sess., 932 (1799-1800).

2 Cong. Debates, 19 Cong., I sess., 549 (1825-26).

8 Five Letters to Gov. Hamilton. No. 4 in pamphlet in Boston Athenæum (Library No. B. 1065).

1824-29.]

BROAD CONSTRUCTION PERSISTS.

31

It must not be overlooked, that down to 1828 the Confused South Carolina leaders seem to have had a confused conception of sovereignty. conception as to the nature and the seat of sovereignty. The confusion into which Senator Hayne fell in 1830 in his discussion of the origin of the Union has been pointed out by several writers. It will be remembered that he made the general government one of the sovereign parties to the compact. That he did so is not remarkable: it was very common in South Carolina and elsewhere to speak of the sovereign federal government on the one hand, and of the sovereign States on the other. "Sidney," as we shall see,1 fell into the same confusion in 1828; as did also James Hamilton, in his address to his constituents at Walterborough in October of the same year. We have even the serious remonstrance of the South Carolina Legislature in 1827, where it is represented to be important that South Carolina should approach the national government as a sovereign and an South equal. She had not then adopted Calhoun's view that "an equal." the national government was a mere creature. So far as there was any definite opinion at all, it appears to have been that both the State and the general government were sovereign, each in its own sphere, and that in cases of conflict the Supreme Court was the arbiter.

Carolina

The truth is that the question had come to be one that could not be decided by weight of authority. So much Hayne declared in 1829, when he said that his State would never yield to great names when such Submission principles were at stake; and so much McDuffie im- impossible. plied when he asked if it could be supposed that South Carolina could submit to a practical interpretation of the compact by which her interests would

1 See below, page 75.

2 "Let our antagonist be a co-equal Sovereign, and let us meet him on equal grounds."

be sacrificed. One thing was settled: the extreme state rights leaders had determined to make a test of their doctrine, and to ascertain whether their rights could be trampled upon "under the forms of the Constitution, but in direct violation of its spirit."

CHAPTER III.

CAUSES OF NULLIFICATION.

1823-1828.

over election

To the people of South Carolina everything seemed Change in to go wrong after the defeat of Andrew Jackson in 1824. demanded. machinery The times appeared to be out of joint: had not the "Adams Dynasty" imposed itself on the country by fraud and corruption? Had it not deviated from the conservative policy of preceding administrations and announced principles that were at variance with the well established rights of the States? "A union of the black- Discontent leg and the Puritan," what better could be expected of of 1824. it? Public sentiment in the State demanded such a change in the electoral machinery as would prevent a recurrence of the surprise of 1824. In no event should Congress be permitted to choose the President. Governor Manning, in his message, December 1, 1826, expressed the opinion that the time was not far distant when it would be found expedient to change the method of electing the President; the House of the State Legislature agreed with him, but deemed it unwise, at the time, to agitate the matter. McDuffie championed this reform both in and out of Congress, to the great satisfaction of his constituents.

To add to the discontent of the South Carolinians Discontent over the came the renewed demands of the protectionists for tariff. higher duties, after the slight revulsion of 1825-26. In the session of Congress of 1826-27, the woollen interests, in particular, clamored for aid. A bill was introduced embodying their demands, and would have