Nullification

Nullification



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Short of secession, nullification is the most extreme position of the states' rights philosophy. This view is an extension of Jefferson's belief in the supremacy of individual and states' rights over federal governmental powers.The nullification concept was first raised by the Virginia and Kentucky Resolutions in 1798-99 in reaction to the Alien and Sedition Acts.In 1809-10 nullification was briefly revived by New England states which opposed a national embargo (Non-Intercourse Act).The concept returned in Southern reactions to the Tariff of 1828, the Tariff of 1832 and the accompanying contest involving John C. Calhoun, Daniel Webster, Henry Clay and Andrew Jackson.In 1861 South Carolina and other Southern states attempted the ultimate in nullification in the Secession Crisis.


Nullification - History

Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.

More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.


Calhoun and the Nullification Crisis

Calhoun, who is most widely remembered as a defender of the institution of slavery, became outraged in the late 1820s by the imposition of tariffs that he felt unfairly penalized the South. A particular tariff passed in 1828 raised taxes on imports and outraged Southerners, and Calhoun became a forceful advocate against the new tariff.

The 1828 tariff was so controversial in various regions of the country that it became known as the Tariff of Abominations.

Calhoun said he believed the law had been designed to take advantage of the Southern states. The South was largely an agricultural economy with relatively little manufacturing. So finished goods were often imported from Europe, which meant a tariff on foreign goods would fall heavier on the South, and it also reduced demand for imports, which then reduced demand for the raw cotton the South sold to Britain. The North was much more industrialized and produced many of its own goods. In fact, the tariff-protected industry in the North from foreign competition since it made imports more expensive.

In Calhoun's estimation, the Southern states, having been treated unfairly, were under no obligation to follow the law. That line of argument, of course, was highly controversial, since it undermined the Constitution.

Calhoun wrote an essay advancing a theory of nullification in which he made a legal case for states to disregard some federal laws. At first, Calhoun wrote his thoughts anonymously, in the style of many political pamphlets of the era. But eventually, his identity as the author became known.

In the early 1830s, with the issue of a tariff again rising to prominence, Calhoun resigned his position as vice president, returned to South Carolina, and was elected to the Senate, where he promoted his idea of nullification.

Jackson was ready for armed conflict―he got Congress to pass a law allowing him to use federal troops to enforce federal laws if necessary. But ultimately the crisis was resolved without the use of force. In 1833 a compromise led by the legendary Sen. Henry Clay of Kentucky was reached ​on a new tariff.

But the nullification crisis revealed the deep divisions between the North and the South and showed they could cause enormous problems―and eventually, they split the Union and secession followed, with the first state to secede being South Carolina in December 1860, and the die was cast for the Civil War that followed.


Key Figures and Important Events

  • The Tariff of 1828 was proposed by Silas Wright who supported the presidential campaign of Andrew Jackson.
  • These taxes are said to have been the highest in the United States of America and received different responses.
  • In the Mid-Atlantic and Western states, it was viewed favorably. The 30 to 50 percent rise in taxes secured the industries in New York, Pennsylvania, Missouri, Kentucky, and Ohio which mainly produced raw materials.
  • But in the south, especially in South Carolina, the cotton and tobacco farms received no such protections.
  • In fact, it had a very adverse impact on the economy of the southern states, both directly and indirectly.
  • The taxes made the import of raw materials from Europe extremely expensive and practically unaffordable.
  • While the trade deficit caused the European markets to block the import of cotton from the southern states further breaking the back of the southern economy.
  • Despite the opposing views on the tariff, Andrew Jackson secured his presidency garnering support from the North as well as the South.
  • The southerners hoped that the new president would change or at least reduce the taxes, however, when he failed to act, Vice President John C Calhoun took matters into his own hands.
  • In 1828, he anonymously opposed the tariffs through a pamphlet called ‘Exposition and Protest’ which outlined the faults of the tariff and declared it unconstitutional.
  • Thomas Jefferson
  • James Madison
  • It was the first step toward formulating the nullification theory introduced by Thomas Jefferson and James Madison during the late 18th century.
  • Though the objections raised by the southerners were largely ignored until 1830, an open debate on the Senate floor between South Carolina’s Senator Robert Hayne and Massachusetts Senator Daniel Webster brought America’s attention back to the issues faced by the south.
  • According to Senator Hayne, the federal government had no right to impose laws on states which clearly violated their constitutional rights.
  • He also argued that the rulings of the federal government can be nullified by the state government if they found them to be infringing their sovereignty.

Nullification Crisis

Wikimedia Commons

Thirty years before the Civil War broke out, disunion appeared to be on the horizon with the Nullification Crisis. What started as a debate over the Tariff of Abominations soon morphed into debates over state and federal sovereignty and liberty and disunion. These debates transformed into a national crisis when South Carolina threatened secession, an explicit threat of disunion. However, the United States narrowly avoided a civil war through compromise and the reaffirmation of executive authority.

Since 1816, the United States used tariffs to protect American industry against foreign competition. Protective tariffs formed the foundation of Henry Clay’s American System which served as the main economic policy of the United States until President Andrew Jackson’s election. The first tariff passed was relatively low, but it progressively rose each year until 1828, with what became known as the Tariff of Abominations. Representative Silas Wright, an ally of Jackson, first proposed this tariff in 1828 as a ploy to help Old Hickory’s presidential campaign. The tariff raised duties to between 30-50% on certain raw materials, which protected the Mid-Atlantic and western states which produced these raw materials, but left southern states—and its cotton and tobacco industry—unprotected. In retaliation for the high tariff, foreign markets blocked the sale of American cotton, the South’s chief export and the cornerstone of their economy which caused economic issues in the South. Despite the South’s fervent objection to this tariff, Jackson maintained southern support for his campaign and by backing this tariff garnered support from states such as Pennsylvania, New York, Ohio, Kentucky, and Missouri, which proved to be vital in his campaign and helped him win the presidency. In 1828, Jackson’s soon to be Vice President and ally John C. Calhoun of South Carolina wrote an anonymously published a pamphlet titled “Exposition and Protest” which passionately criticized the tariff and laid the groundwork for nullification theory.

Despite southern objections, the tariff passed and went largely forgotten in American consciousness until an exchange on the Senate floor between South Carolinian Senator Robert Hayne and Massachusetts Senator Daniel Webster in January 1830 which reopened the debate. Hayne argued that state sovereignty permitted the nullification of federal rulings when those rulings infringed on states’ rights, going so far as to argue for secession in order to preserve state and personal liberty. Webster famously responded with “liberty and union, now and forever, one and inseparable,” to Webster and many other unionists, people, not states comprised the union. Nullification propagated secession which in turn would destroy the union: the sole protector of liberty. Thus, to preserve liberty, one must preserve the union. Nullifiers did not believe in this link between union and liberty but rather argued that it was the states alone which protected individual freedoms from an overreaching federal government.

The issue of nullification divided the White House as Vice President Calhoun staunchly supported states’ rights and served as a spokesman for nullification by revealing he wrote “Exposition and Protest.” Jackson, on the other hand, supported states’ rights, but not at the expense of the Union and once stated he “would rather die in the last ditch than see the union dismantled.” The Nullification Crisis was one in a series of issues that destroyed Jackson and Calhoun’s relationship.

In 1832 Congress replaced the Tariff of Abominations with a lower tariff however, that was not enough to satisfy the South Carolinians who had made faint threats of nullification since 1828. Almost immediately following Jackson’s re-election in 1832, South Carolina, fortified by the recent election of many state nullifiers, formed a convention that denounced the Tariff of Abominations and its 1832 revision and formally adopted an Ordinance of Nullification. This ordinance declared those tariffs null and void and forbade the collection of duties within the boundary of the state following February 1, 1833. Finally, the ordinance declared that any act of force by Congress against South Carolina would lead to its immediate secession from the union.

In the past Jackson simply acknowledged the supremacy of union over state sovereignty without taking any direct action however, this explicit threat of secession forced him to act against these nullifiers. Jackson advised his Secretary of War Lewis Cass to prepare for war, and over the course of a few months, Cass complied arms and enlisted a militia in preparation to enter South Carolina to enforce the tariff and prevent secession. During his war preparations, Jackson engaged in a national public relations campaign to discredit nullification in the mind of the American public. Jackson gave speeches against nullification that vehemently denounced South Carolina and promoted unionism. Jackson also gave a special speech to Congress asking them to reaffirm his authority to use force to ensure the execution of United States laws, which Congress complied with in a bill aptly known as Jackson’s force bill.

Despite his preparations, Jackson did not desire a civil war, but rather hoped the nullifiers would back down against his threats. In response to Jackson’s vigorous actions, South Carolinians delayed the enactment of their ordinance. Jackson, in turn, discretely supported Speaker of the House Henry Clay’s efforts to lower the tariff that caused this crisis. On March 2, 1833, Congress passed both Jackson’s and Clay’s tariff reduction. In response, South Carolinians rescinded their Ordinance of Nullification and the crisis passed. Many parties claimed to be the victor of this crisis, Calhoun and his nullifiers for receiving a tariff reduction, Clay for his compromise that prevailed however, Jackson remained the true victor as he reaffirmed his executive authority and prevented a potential civil war days before his second inauguration.

Although not the first crisis that dealt with state authority over perceived unconstitutional infringements on its sovereignty, the Nullification Crisis represented a pivotal moment in American history as this is the first time tensions between state and federal authority almost led to a civil war. Ultimately, the spirit of union prevailed, and Americans reached a compromise which avoided war. However, this crisis laid the groundwork for the secession theory that reemerged in the 1850s at a time of heightened sectional tensions. By then the United States would not be so lucky, and debates over slavery and the legitimacy of secession would plunge Americans into a horrific civil war.


Jury Nullification

Jury nullification is not new in fact, proponents wanting to justify its contemporary application do so by referring to early U.S. history when American colonists struggled to fashion a legal system that would be applicable to them. Prior to U.S. independence, the ENGLISH LAW of seditious libel carried grave consequences for colonists who spoke out against British rule of the colonies. In 1735, defense counsel for JOHN PETER ZENGER, at Zenger's trial for seditious LIBEL, contended that:

[Juries] have the right beyond all dispute to determine both the law and the facts, and where they do not doubt of the law, they ought to do so. This of leaving it to the judgment of the Court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases.

The jury acquitted Zenger, and every subsequent colonial jurisdiction that confronted the issue of the jury's right to decide both the law and the facts also came to the conclusion that jurors could decide matters of law. However, this conclusion must be put into historical perspective. First, in pre-revolutionary days, colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors.

However, once the United States established itself and a new republican form of government was developed, the will of the people became expressed through popular election of representatives and the enactment of their own laws. As nullification of the law would constitute a frustration of the popular will, the issue became essentially moot. Jury nullification was no longer considered necessary or desirable in a democratic society. Concomitantly, the role of judges as those who decided issues of law became enmeshed with traditional trial procedure. Not until more than 100 years later did the U.S. Supreme Court have to address the issue. In the case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), it unequivocally determined that, in the federal system at least, there was no right to jury nullification. The opinion noted,

[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that &hellip they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law &hellip This is the right of every citizen, and it is his only protection.

In subsequent years, jurors tended to invoke nullification to address either unpopular laws or overzealous application of them. Historic examples include the Alien and Seditions Acts, the Fugitive Slave Acts, and PROHIBITION. During the era of the VIETNAM WAR, the issue resurfaced in United States v. Dougherty, 473 F.2d 113 (D.C. Cir. 1972). In that case, defendant members of the Catholic clergy had ransacked the offices of the Dow Chemical Company to protest the manufacturing of napalm. At trial, defense counsel requested that members of the jury be instructed on their power to nullify the law. The trial court refused, and the court of appeals upheld the decision. Sporadic subsequent cases, presenting variations on the theme, have similarly underscored the high court's historic ruling.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize. Examples include controversial social issues such as motorcycle helmet laws, ABORTION and right-to-life issues, medicinal use of marijuana, and EUTHANASIA.

In 1997, the U.S. Court of Appeals for the Second Circuit held that a juror's intent to nullify the law was JUST CAUSE for dismissal from the jury.

The case of United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) involved an African-American juror's dismissal from the criminal jury trial of five African&ndashAmericans on drug charges. However, the narrow opinion also reversed the convictions of the five defendants and remanded the matter for a new trial. Although the court ruled that a juror's refusal to apply the relevant law was just cause for dismissal, only unambiguous evidence of the juror's deliberate disregard of the law (not apparent in this case) would justify such a dismissal. In so holding, the appellate court acknowledged the necessity for secrecy in jury deliberations.

Similarly, in 1999, the Colorado Court of Appeals reversed a lower court's CONTEMPT conviction of juror Laura Kriho. People v. Kriho, 996 P.2d. 158 (Colo. App. [1999]). Several of Kriho's fellow jurors testified that during deliberations, she suggested to them that drug cases should be handled in the community rather than by a criminal justice system, and then advised them of their right to nullify. Although the trial court cited Kriho's alleged misleading of the court about her attitudes toward drug use during voir dire examination, the appellate court found that the Kriho case was, in fact, about jury nullification. It reversed her conviction on grounds that the court should not have considered evidence from jury-room deliberations. The end result of these cases reaffirms that juries have the power to render unreviewable general verdicts of acquittal, making it nearly impossible to definitely prove that nullification occurred.


John C. Calhoun’s Theory of Nullification

A threat of secession that galvanized the country and helped to set the stage for the coming Civil War.

In 1828 Congress passed a new tariff that dramatically increased the rates on raw goods. The “tariff of abominations,” as it was labeled in the South, provoked an outcry demanding the repeal of the new rates. One of the most powerful responses to the congressional action was penned by John C Calhoun of South Carolina. When he wrote his Southern Exposition Calhoun was serving as the Vice-President of the country but had little affection for Andrew Jackson the President.

Ordinance of Nullification

In his anonymous Exposition Calhoun laid out an argument for action to be taken by the state. He argued that the Union was a compact between sates. The states had the power to nullify a federal law that exceeded powers given to Congress in the constitution. The law could then be declared null and void in that state. Congress could repeal the law or could pass a constitutional amendment giving it the powers in question. If the amendment passed the state could accept the law or secede from the Union. The state legislature adopted the Ordinance of Nullification in 1833 and declared both tariffs null and void. In the text of the ordinance they also made clear “that we are determined to maintain this, our ordinance and Declaration, at every hazard…”

Historical Precedent

There was little new in the arguments presented by Calhoun. The same concepts of nullification, states rights, and secession were presented to the nation for the first time in the Virginia and Kentucky Resolutions in 1789. In both James Madison and Thomas Jefferson put forth much the same argument Calhoun drafted but there was little action taken at the time. In the case of South Carolina nullification of laws were declared and secession was a very real possibility.

Arguments Against South Carolina

The Ordinance was a dangerous declaration in response Daniel Webster of Massachusetts argued that the Union was not a compact but rather a contract between the states entered into when the constitution was ratified. It could not be cast aside when one wished. The Supreme Court, he held, was the arbiter of such issues not the states which had been the case since Marbury v Madison (1803).

Jackson’s Response

A much stronger reply was from Andrew Jackson himself. Jackson was intent on preserving the Union and putting an end to the crisis. In his Proclamation on Nullification he argued that the Union was perpetual, there was no right to secession, adding that “disunion by armed force is treason.” Aware of the burden that the tariffs carried in the southern states he also urged Congress to act in reducing the rates. At the same time he was granted the power to collect the revenue in South Carolina by force if necessary when congress passed the Force Act in 1833.

Peaceful Resolution

The nation teetered on the brink of war but with the swift action of Congress and the reduction of rates South Carolina repealed its Ordinance of Nullification. There was a temporary restoration of peaceful interaction between the states but under the surface there burbled the tension that erupted into the Civil War. The question of perpetual Union and the right of secession would be decided in those dark days of the 1860s.


Contents

The historian Richard E. Ellis wrote:

By creating a national government with the authority to act directly upon individuals, by denying to the state many of the prerogatives that they formerly had, and by leaving open to the central government the possibility of claiming for itself many powers not explicitly assigned to it, the Constitution and Bill of Rights as finally ratified substantially increased the strength of the central government at the expense of the states. [10]

The extent of this change and the problem of the actual distribution of powers between state and the federal governments would be a matter of political and ideological discussion through the Civil War as well as afterwards. [11] In the early 1790s the debate centered on Alexander Hamilton's nationalistic financial program versus Jefferson's democratic and agrarian program, a conflict that led to the formation of two opposing national political parties. Later in the decade the Alien and Sedition Acts led to the states' rights position being articulated in the Kentucky and Virginia Resolutions. [12] The Kentucky Resolutions, written by Thomas Jefferson, contained the following, which has often been cited as a justification for both nullification and secession:

. that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it . [13]

The Virginia Resolutions, written by James Madison, hold a similar argument:

The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound to interpose to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them. . The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. [14]

Historians differ over the extent to which either resolution advocated the doctrine of nullification. Historian Lance Banning wrote, "The legislators of Kentucky (or more likely, John Breckinridge, the Kentucky legislator who sponsored the resolution) deleted Jefferson's suggestion that the rightful remedy for federal usurpation was a "nullification" of such acts by each state acting on its own to prevent their operation within its respective borders. Rather than suggesting individual, although concerted, measures of this sort, Kentucky was content to ask its sisters to unite in declarations that the acts were "void and of no force", and in "requesting their appeal" at the succeeding session of the Congress." [15] The key sentence, and the word "nullification" was used in supplementary Resolutions passed by Kentucky in 1799. [16]

Madison's judgment is clearer. He was chairman of a committee of the Virginia Legislature, which issued a book-length Report on the Resolutions of 1798, published in 1800 after they had been decried by several states. This asserted that the state did not claim legal force. "The declarations in such cases are expressions of opinion, unaccompanied by other effect than what they may produce upon opinion, by exciting reflection. The opinions of the judiciary, on the other hand, are carried into immediate effect by force." If the states collectively agreed in their declarations, there were several methods by which it might prevail, from persuading Congress to repeal the unconstitutional law, to calling a constitutional convention, as two-thirds of the states may. [17] When, at the time of the nullification crisis, he was presented with the Kentucky resolutions of 1799, he argued that the resolutions themselves were not Jefferson's words, and that Jefferson meant this not as a constitutional, but as a revolutionary right. [18]

Madison biographer Ralph Ketcham wrote:

Though Madison agreed entirely with the specific condemnation of the Alien and Sedition Acts, with the concept of the limited delegated power of the general government, and even with the proposition that laws contrary to the Constitution were illegal, he drew back from the declaration that each state legislature had the power to act within its borders against the authority of the general government to oppose laws the legislature deemed unconstitutional." [19]

Historian Sean Wilentz explains the widespread opposition to these resolutions:

Several states followed Maryland's House of Delegates in rejecting the idea that any state could, by legislative action, even claim that a federal law was unconstitutional, and suggested that any effort to do so was treasonous. A few northern states, including Massachusetts, denied the powers claimed by Kentucky and Virginia and insisted that the Sedition law was perfectly constitutional . . Ten state legislatures with heavy Federalist majorities from around the country censured Kentucky and Virginia for usurping powers that supposedly belonged to the federal judiciary. Northern Republicans supported the resolutions' objections to the alien and sedition acts, but opposed the idea of state review of federal laws. Southern Republicans outside Virginia and Kentucky were eloquently silent about the matter, and no southern legislature heeded the call to battle. [20]

The election of 1800 was a turning point in national politics, as the Federalists were replaced by the Democratic-Republican Party led by Jefferson, but the four presidential terms spanning the period from 1800 to 1817 "did little to advance the cause of states' rights and much to weaken it." Over Jefferson's opposition, the power of the federal judiciary, led by Federalist Chief Justice John Marshall, increased. Jefferson expanded federal powers with the acquisition of the Louisiana Territory and his use of a national embargo designed to prevent involvement in a European war. Madison in 1809 used national troops to enforce a Supreme Court decision in Pennsylvania, appointed an "extreme nationalist" in Joseph Story to the Supreme Court, signed the bill creating the Second Bank of the United States, and called for a constitutional amendment to promote internal improvements. [21]

Opposition to the War of 1812 was centered in New England. Delegates to a convention in Hartford, Connecticut, met in December 1814 to consider a New England response to Madison's war policy. The debate allowed many radicals to argue the cause of states' rights and state sovereignty. In the end, moderate voices dominated and the final product was not secession or nullification, but a series of proposed constitutional amendments. [22] Identifying the South's domination of the government as the cause of much of their problems, the proposed amendments included "the repeal of the three-fifths clause, a requirement that two-thirds of both houses of Congress agree before any new state could be admitted to the Union, limits on the length of embargoes, and the outlawing of the election of a president from the same state to successive terms, clearly aimed at the Virginians." [23] The war was over before the proposals were submitted to President Madison.

After the conclusion of the War of 1812 Sean Wilentz notes:

Madison's speech [his 1815 annual message to Congress] affirmed that the war had reinforced the evolution of mainstream Republicanism, moving it further away from its original and localist assumptions. The war's immense strain on the treasury led to new calls from nationalist Republicans for a national bank. The difficulties in moving and supplying troops exposed the wretchedness of the country's transportation links, and the need for extensive new roads and canals. A boom in American manufacturing during the prolonged cessation of trade with Britain created an entirely new class of enterprisers, most of them tied politically to the Republicans, who might not survive without tariff protection. More broadly, the war reinforced feelings of national identity and connection. [24]

This spirit of nationalism was linked to the tremendous growth and economic prosperity of this postwar era. However in 1819, the nation suffered its first financial panic and the 1820s turned out to be a decade of political turmoil that again led to fierce debates over competing views of the exact nature of American federalism. The "extreme democratic and agrarian rhetoric" that had been so effective in 1798 led to renewed attacks on the "numerous market-oriented enterprises, particularly banks, corporations, creditors, and absentee landholders". [25]

The Tariff of 1816 had some protective features, and it received support throughout the nation, including that of John C. Calhoun and fellow South Carolinian William Lowndes. [26] The first explicitly protective tariff linked to a specific program of internal improvements was the Tariff of 1824. [27] Sponsored by Henry Clay, this tariff provided a general level of protection at 35% ad valorem (compared to 25% with the 1816 act) and hiked duties on iron, woolens, cotton, hemp, and wool and cotton bagging. The bill barely passed the federal House of Representatives by a vote of 107 to 102. The Middle states and Northwest supported the bill, the South and Southwest opposed it, and New England split its vote with a majority opposing it. In the Senate, the bill, with the support of Tennessee Senator Andrew Jackson, passed by four votes, and President James Monroe, the Virginia heir to the Jefferson-Madison control of the White House, signed the bill on March 25, 1824. [28] Daniel Webster of Massachusetts led the New England opposition to this tariff. [29]

Protest against the prospect and the constitutionality of higher tariffs began in 1826 and 1827 with William Branch Giles, who had the Virginia legislature pass resolutions denying the power of Congress to pass protective tariffs, citing the Virginia Resolutions of 1798 and James Madison's 1800 defense of them. Madison denied both the appeal to nullification and the unconstitutionality he had always held that the power to regulate commerce included protection. Jefferson had, at the end of his life, written against protective tariffs. [30]

The Tariff of 1828 was largely the work of Martin Van Buren (although Silas Wright Jr. of New York prepared the main provisions) and was partly a political ploy to elect Andrew Jackson President. Van Buren calculated that the South would vote for Jackson regardless of the issues, so he ignored their interests in drafting the bill. New England, he thought, was just as likely to support the incumbent John Quincy Adams, so the bill levied heavy taxes on raw materials consumed by New England such as hemp, flax, molasses, iron, and sail duck. With an additional tariff on iron to satisfy Pennsylvania interests, Van Buren expected the tariff to help deliver Pennsylvania, New York, Missouri, Ohio, and Kentucky to Jackson. Over opposition from the South and some from New England, the tariff was passed with the full support of many Jackson supporters in Congress and signed by President Adams in early 1828. [31]

As expected, Jackson and his running mate John Calhoun carried the entire South with overwhelming numbers in every state but Louisiana, where Adams drew 47% of the vote in a losing effort. But many Southerners became dissatisfied as Jackson, in his first two annual messages to Congress, failed to launch a strong attack on the tariff. Historian William J. Cooper Jr. writes:

The most doctrinaire ideologues of the Old Republican group [supporters of the Jefferson and Madison position in the late 1790s] first found Jackson wanting. These purists identified the tariff of 1828, the hated Tariff of Abominations, as the most heinous manifestation of the nationalist policy they abhorred. That protective tariff violated their constitutional theory, for, as they interpreted the document, it gave no permission for a protective tariff. Moreover, they saw protection as benefiting the North and hurting the South. [32]

South Carolina had been adversely affected by the national economic decline of the 1820s. During this decade, the population decreased by 56,000 whites and 30,000 slaves, out of a total free and slave population of 580,000. The whites left for better places they took slaves with them or sold them to traders moving slaves to the Deep South for sale. [33]

Historian Richard E. Ellis describes the situation:

Throughout the colonial and early national periods, South Carolina had sustained substantial economic growth and prosperity. This had created an extremely wealthy and extravagant low country aristocracy whose fortunes were based first on the cultivation of rice and indigo, and then on cotton. Then the state was devastated by the Panic of 1819. The depression that followed was more severe than in almost any other state of the Union. Moreover, competition from the newer cotton producing areas along the Gulf Coast, blessed with fertile lands that produced a higher crop-yield per acre, made recovery painfully slow. To make matters worse, in large areas of South Carolina slaves vastly outnumbered whites, and there existed both considerable fear of slave rebellion and a growing sensitivity to even the smallest criticism of "the peculiar institution." [34]

State leaders, led by states' rights advocates such as William Smith and Thomas Cooper, blamed most of the state's economic problems on the Tariff of 1816 and national internal improvement projects. Soil erosion and competition from the New Southwest were also very significant reasons for the state's declining fortunes. [35] George McDuffie was a particularly effective speaker for the anti-tariff forces, and he popularized the Forty Bale theory. McDuffie argued that the 40% tariff on cotton finished goods meant that "the manufacturer actually invades your barns, and plunders you of 40 out of every 100 bales that you produce." Mathematically incorrect, this argument still struck a nerve with his constituency. Nationalists such as Calhoun were forced by the increasing power of such leaders to retreat from their previous positions and adopt, in the words of Ellis, "an even more extreme version of the states' rights doctrine" in order to maintain political significance within South Carolina. [36]

South Carolina's first effort at nullification occurred in 1822. Its planters believed that free black sailors had assisted Denmark Vesey in his planned slave rebellion. South Carolina passed a Negro Seamen Act, which required that all black foreign seamen be imprisoned while their ships were docked in Charleston. The UK strongly objected, especially as it was recruiting more Africans as sailors. What was worse, if the captains did not pay the fees to cover the cost of jailing, South Carolina would sell the sailors into slavery. Other Southern states also passed laws against free black sailors. [37]

Supreme Court Justice William Johnson, in his capacity as a circuit judge, declared the South Carolina law as unconstitutional, since it violated the United States' treaties with the UK. The South Carolina Senate announced that the judge's ruling was invalid and that the act would be enforced. The federal government did not attempt to carry out Johnson's decision. [38]

Historian Avery Craven argues that, for the most part, the debate from 1828-1832 was a local South Carolina affair. The state's leaders were not united and the sides were roughly equal. The western part of the state and a faction in Charleston, led by Joel Poinsett, remained loyal to the Union. Only in small part was the conflict between "a National North against a States'-right South". [39]

After the final vote on the Tariff of 1828, South Carolina's congressional delegation held two caucuses, the second at the home of Senator Robert Y. Hayne. They were rebuffed in their efforts to coordinate a united Southern response and focused on how their state representatives would react. While many agreed with McDuffie that tariff policy could lead to secession, they all agreed that, as much as possible, the issue should be kept out of the upcoming presidential election. Calhoun, while not at this meeting, served as a moderating influence. He felt that the first step in reducing the tariff was to defeat Adams and his supporters in the upcoming election. William C. Preston, on behalf of the South Carolina legislature, asked Calhoun to prepare a report on the tariff situation. Calhoun readily accepted and in a few weeks had a 35,000-word draft of what would become his "Exposition and Protest". [40]

Calhoun's "Exposition" was completed late in 1828. He argued that the tariff of 1828 was unconstitutional because it favored manufacturing over commerce and agriculture. He believed the tariff power could be used only to generate revenue, not to provide protection from foreign competition for American industries, and that the people of a state or several states, acting in a democratically elected convention, had the power to veto any act of the federal government that violated the Constitution. This veto, the core of the doctrine of nullification, was explained by Calhoun in the Exposition:

If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights, It is impossible to understand the force of terms, and to deny so plain a conclusion. [41]

The report also detailed the specific southern grievances over the tariff that led to the current dissatisfaction. [42] Fearful that "hotheads" such as McDuffie might force the legislature into taking drastic action against the federal government, historian John Niven describes Calhoun's political purpose in the document:

All through that hot and humid summer, emotions among the vociferous planter population had been worked up to a near-frenzy of excitement. The whole tenor of the argument built up in the "Exposition" was aimed to present the case in a cool, considered manner that would dampen any drastic moves yet would set in motion the machinery for repeal of the tariff act. It would also warn other sections of the Union against any future legislation that an increasingly self-conscious South might consider punitive, especially on the subject of slavery. [43]

The report was submitted to the state legislature, which had 5,000 copies printed and distributed. Calhoun, who still had designs on succeeding Jackson as president, was not identified as the author, but word on this soon leaked out. The legislature took no action on the report at that time. [44]

In the summer of 1828, Robert Barnwell Rhett, soon to be considered the most radical of the South Carolinians, entered the fray over the tariff. As a state representative, Rhett called for the governor to convene a special session of the legislature. An outstanding orator, Rhett appealed to his constituents to resist the majority in Congress. He addressed the danger of doing nothing:

But if you are doubtful of yourselves—if you are not prepared to follow up your principles wherever they may lead, to their very last consequence—if you love life better than honor,—prefer ease to perilous liberty and glory awake not! Stir not!—Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair. [45]

Rhett's rhetoric about revolution and war was too radical in the summer of 1828 but, with the election of Jackson assured, James Hamilton Jr. on October 28 in the Colleton County Courthouse in Walterborough "launched the formal nullification campaign." [46] Renouncing his former nationalism, Hamilton warned the people that "Your task-master must soon become a tyrant, from the very abuses and corruption of the system, without the bowels of compassion, or a jot of human sympathy." He called for implementation of Jefferson's "rightful remedy" of nullification. Hamilton sent a copy of the speech directly to President-elect Jackson. But despite a statewide campaign by Hamilton and McDuffie, a proposal to call a nullification convention in 1829 was defeated by the South Carolina legislature meeting at the end of 1828. State leaders such as Calhoun, Hayne, Smith, and William Drayton all remained publicly noncommittal or opposed to nullification for the next couple of years. [47]

The division in the state between radicals and conservatives continued through 1829 and 1830. After the failure of a state project to arrange financing of a railroad within the state to promote internal trade, the state petitioned Congress to invest $250,000 in the company trying to build it. After Congress tabled the measure, debate in South Carolina resumed between those who wanted state investment and those who wanted to work to get Congress's support. The debate demonstrated that a significant minority of the state did have an interest in Clay's American System. The effect of the Webster–Hayne debate was to energize the radicals, and some moderates started to move in their direction. [48]

The state election campaign of 1830 focused on the tariff issue and the need for a state convention. On the defensive, radicals underplayed the intent of the convention as pro-nullification. When voters were presented with races where an unpledged convention was the issue, the radicals generally won. When conservatives effectively characterized the race as being about nullification, the radicals lost. The October election was narrowly carried by the radicals, although the blurring of the issues left them without any specific mandate. [49] In South Carolina, the governor was selected by the legislature, which chose James Hamilton, the leader of the radical movement, and fellow radical Henry L. Pinckney as speaker of the South Carolina House. For the open Senate seat, the legislature chose the more radical Stephen Decatur Miller over William Smith. [50]

With radicals in leading positions, in 1831 they began to capture momentum. State politics became sharply divided along Nullifier and Unionist lines. Still, the margin in the legislature fell short of the two-thirds majority needed for a convention. Many of the radicals felt that convincing Calhoun of the futility of his plans for the presidency would lead him into their ranks. Calhoun, meanwhile, had concluded that Van Buren was establishing himself as Jackson's heir apparent. At Hamilton's prompting, McDuffie made a three-hour speech in Charleston demanding nullification of the tariff at any cost. In the state, the success of McDuffie's speech seemed to open up the possibilities of both military confrontation with the federal government and civil war within the state. With silence no longer an acceptable alternative, Calhoun looked for the opportunity to take control of the antitariff faction in the state by June he was preparing what would be known as his Fort Hill Address. [51]

Published on July 26, 1831, the address repeated and expanded the positions Calhoun had made in the "Exposition". While the logic of much of the speech was consistent with the states' rights position of most Jacksonians, and even Daniel Webster remarked that it "was the ablest and most plausible, and therefore the most dangerous vindication of that particular form of Revolution", the speech still placed Calhoun clearly in a nullified camp. Within South Carolina, his gestures at moderation in the speech were drowned out as planters received word of the Nat Turner insurrection in Virginia. Calhoun was not alone in finding a connection between the abolition movement and the sectional aspects of the tariff issue. [52] It confirmed for Calhoun what he had written in a September 11, 1830, letter:

I consider the tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the peculiar institution of the Southern States and the consequent direction which that and her soil have given to her industry, has placed them in regard to taxation and appropriations in opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states they must in the end be forced to rebel, or, submit to have their paramount interests sacrificed, their domestic institutions subordinated by Colonization and other schemes, and themselves and children reduced to wretchedness. [53]

From this point, the nullifiers accelerated their organization and rhetoric. In July 1831, the States Rights and Free Trade Association was formed in Charleston and expanded throughout the state. Unlike state political organizations in the past, which were led by the South Carolina planter aristocracy, this group appealed to all segments of the population, including non-slaveholder farmers, small slaveholders, and the Charleston non-agricultural class. Governor Hamilton was instrumental in seeing that the association, which was both a political and a social organization, expanded throughout the state. In the winter of 1831 and spring of 1832, Hamilton held conventions and rallies throughout the state to mobilize the nullification movement. The conservatives were unable to match the radicals in organization or leadership. [54]

The state elections of 1832 were "charged with tension and bespattered with violence," and "polite debates often degenerated into frontier brawls." Unlike the previous year's election, the choice was clear between nullifiers and unionists. The nullifiers won and on October 20, 1832, Hamilton called the legislature into a special session to consider a convention. The legislative vote was 96-25 in the House and 31-13 in the Senate. [55]

In November 1832, the Nullification Convention met. The convention declared the tariffs of 1828 and 1832 unconstitutional and unenforceable within the state of South Carolina after February 1, 1833. It was asserted that attempts to use force to collect the taxes would lead to the state's secession. Robert Hayne, who succeeded Hamilton as governor in 1833, established a 2,000-man group of mounted minutemen and 25,000 infantry who would march to Charleston in the event of a military conflict. These troops were to be armed with $100,000 in arms purchased in the North. [56]

The enabling legislation passed by the legislature was carefully constructed to avoid clashes if at all possible and create an aura of legality in the process. To avoid conflicts with Unionists, it allowed importers to pay the tariff if they desired. Other merchants could pay the tariff by obtaining a paper tariff bond from the customs officer. They would then refuse to pay the bond when due, and if the customs official seized the goods, the merchant would file for a writ of replevin to recover the goods in state court. Customs officials who refused to return the goods (by placing them under the protection of federal troops) would be civilly liable for twice the value of the goods. To ensure that state officials and judges supported the law, a "test oath" would be required for all new state officials, binding them to support the ordinance of nullification. [57]

Governor Hayne in his inaugural address announced South Carolina's position:

If the sacred soil of Carolina should be polluted by the footsteps of an invader, or be stained with the blood of her citizens, shed in defense, I trust in Almighty God that no son of hers . who has been nourished at her bosom . will be found raising a parricidal arm against our common mother. And even should she stand ALONE in this great struggle for constitutional liberty . that there will not be found, in the wider limits of the state, one recreant son who will not fly to the rescue, and be ready to lay down his life in her defense. [58]

When President Jackson took office in March 1829, he was well aware of the turmoil created by the "Tariff of Abominations". While he may have abandoned some of his earlier beliefs that had allowed him to vote for the Tariff of 1824, he still felt protectionism was justified for products essential to military preparedness and did not believe that the current tariff should be reduced until the national debt was fully paid off. He addressed the issue in his inaugural address and his first three messages to Congress, but offered no specific relief. In December 1831, with the proponents of nullification in South Carolina gaining momentum, Jackson recommended "the exercise of that spirit of concession and conciliation which has distinguished the friends of our Union in all great emergencies." [59] But on the constitutional issue of nullification, despite his strong beliefs in states' rights, Jackson did not waver.

Calhoun's "Exposition and Protest" started a national debate on the doctrine of nullification. The leading proponents [60] of the nationalistic view included Daniel Webster, Supreme Court Justice Joseph Story, Judge William Alexander Duer, John Quincy Adams, Nathaniel Chipman, and Nathan Dane. They rejected the compact theory advanced by Calhoun, claiming that the Constitution was the product of the people, not the states. According to the nationalist position, the Supreme Court had the final say on legislation's constitutionality, and the national union was perpetual and had supreme authority over individual states. [61] The nullifiers, on the other hand, asserted that the central government was not the ultimate arbiter of its own power, and that the states, as the contracting entities, could judge for themselves what was constitutional. While Calhoun's "Exposition" claimed that nullification was based on the reasoning behind the Kentucky and Virginia Resolutions, an aging James Madison in an August 28, 1830, letter to Edward Everett, intended for publication, disagreed. Madison wrote, denying that any individual state could alter the compact: [62]

Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over 1/4 of the U. S.—that is, of 7 States out of 24—to give the law and even the Constn. to 17 States, each of the 17 having as parties to the Constn. an equal right with each of the 7 to expound it & to insist on the exposition. That the 7 might, in particular instances be right and the 17 wrong, is more than possible. But to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself. [63]

Part of the South's strategy to force repeal of the tariff was to arrange an alliance with the West. Under the plan, the South would support the West's demand for free lands in the public domain if the West supported repeal of the tariff. With this purpose, Robert Hayne took the floor on the Senate in early 1830, beginning "the most celebrated debate in the Senate's history." Daniel Webster's response shifted the debate, subsequently styled the Webster-Hayne debates, from the specific issue of western lands to a general debate on the very nature of the United States. Webster's position differed from Madison's: Webster asserted that the people of the United States acted as one aggregate body, while Madison held that the people of the several states acted collectively. John Rowan spoke against Webster on that issue, and Madison wrote, congratulating Webster, but explaining his own position. [64] The debate presented the fullest articulation of the differences over nullification, and 40,000 copies of Webster's response, which concluded with "liberty and Union, now and forever, one and inseparable", were distributed nationwide. [65]

Many people expected Jackson to side with Hayne, but once the debate shifted to secession and nullification, he sided with Webster. On April 13, 1830, at the traditional Democratic Party celebration honoring Jefferson's birthday, Jackson chose to make his position clear. In a battle of toasts, Hayne proposed, "The Union of the States, and the Sovereignty of the States." Jackson's response, when his turn came, was, "Our Federal Union: It must be preserved." To those attending, the effect was dramatic. Calhoun responded with his own toast, in a play on Webster's closing remarks in the earlier debate, "The Union. Next to our liberty, the most dear." Finally, Van Buren offered, "Mutual forbearance and reciprocal concession. Through their agency the Union was established. The patriotic spirit from which they emanated will forever sustain it."

Van Buren wrote in his autobiography of Jackson's toast, "The veil was rent—the incantations of the night were exposed to the light of day." Senator Thomas Hart Benton, in his memoirs, wrote that the toast "electrified the country." [66] Jackson had the final word a few days later, when a visitor from South Carolina asked if Jackson had any message he wanted relayed to his friends back in the state. Jackson's reply was:

Yes I have please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach. [67]

Other issues than the tariff were still being decided. In May 1830, Jackson vetoed the Maysville Road Bill, an important internal-improvements program (especially to Kentucky and Henry Clay), and then followed this with additional vetoes of other such projects shortly before Congress adjourned at the end of May. Clay used these vetoes to launch his presidential campaign. [68] In 1831, the rechartering of the Bank of the United States, with Clay and Jackson on opposite sides, reopened a long-simmering problem. This issue was featured at the December 1831 National Republican convention in Baltimore, which nominated Clay for president, and the proposal to recharter was formally introduced into Congress on January 6, 1832. [69] The Calhoun-Jackson split entered the center stage when Calhoun, as Vice President presiding over the Senate, cast the tie-breaking vote to deny Van Buren the post of minister to England. Van Buren was subsequently selected as Jackson's running mate at the 1832 Democratic National Convention held in May. [70]

In February 1832, Clay, back in the Senate after a two-decade absence, made a three-day speech calling for a new tariff schedule and an expansion of his American System. In an effort to reach out to Calhoun and other Southerners, Clay's proposal provided for a $10 million revenue reduction based on the budget surplus he anticipated for the coming year. Significant protection was still part of the plan, as the reduction primarily came on imports not in competition with domestic producers. Jackson proposed an alternative that reduced overall tariffs to 28%. John Quincy Adams, now in the House of Representatives, used his Committee of Manufacturers to produce a compromise bill that, in its final form, reduced revenues by $5 million, lowered duties on noncompetitive products, and retained high tariffs on woolens, iron, and cotton products. During the political maneuvering, McDuffie's Ways and Means Committee, the normal originator of such bills, prepared a bill with drastic reduction across the board, but it went nowhere. Jackson signed the Tariff of 1832 on July 14, 1832, a few days after vetoing the Bank of the United States recharter bill. Congress adjourned after failing to override Jackson's veto. [71]

With Congress adjourned, Jackson anxiously watched events in South Carolina. The nullifiers found no significant compromise in the Tariff of 1832 and acted accordingly. Jackson heard rumors of efforts to subvert members of the army and navy in Charleston and ordered the secretaries of the army and navy to begin rotating troops and officers based on their loyalty. He ordered General Winfield Scott to prepare for military operations and ordered a naval squadron in Norfolk to prepare to go to Charleston. Jackson kept lines of communication open with unionists such as Joel Poinsett, William Drayton, and James L. Petigru and sent George Breathitt, brother of the Kentucky governor, to independently obtain political and military intelligence. After their defeat at the polls in October, Petigru advised Jackson to "Be prepared to hear very shortly of a State Convention and an act of Nullification."

On October 19, 1832 Jackson wrote to his Secretary of War:

The attempt will be made to surprise the Forts and garrisons by the militia, and must be guarded against with vestal vigilance and any attempt by force repelled with prompt and exemplary punishment.

By mid-November, Jackson's reelection was assured. [72] On December 3, 1832, Jackson sent his fourth annual message to Congress. The message "was stridently states' rights and agrarian in its tone and thrust" and disavowed protection as anything other than a temporary expedient. [73] His intent regarding nullification, as communicated to Van Buren, was "to pass it barely in review, as a mere buble [sic], view the existing laws as competent to check and put it down." He hoped to create a "moral force" that would transcend political parties and sections. The paragraph in the message that addressed nullification was:

It is my painful duty to state that in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union. What ever obstructions may be thrown in the way of the judicial authorities of the General Government, it is hoped they will be able peaceably to overcome them by the prudence of their own officers and the patriotism of the people. But should this reasonable reliance on the moderation and good sense of all portions of our fellow citizens be disappointed, it is believed that the laws themselves are fully adequate to the suppression of such attempts as may be immediately made. Should the exigency arise rendering the execution of the existing laws impracticable from any cause what ever, prompt notice of it will be given to Congress, with a suggestion of such views and measures as may be deemed necessary to meet it. [74]

On December 10, Jackson issued the Proclamation to the People of South Carolina, in which he characterized the positions of the nullifiers as "impractical absurdity" and "a metaphysical subtlety, in pursuit of an impractical theory." He provided this concise statement of his belief:

I consider, then, the power to annul a law of the United States, assumed by one State, 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. [75]

The language Jackson used, combined with the reports out of South Carolina, raised the spectre of military confrontation for many on both sides of the issue. A group of Democrats, led by Van Buren and Thomas Hart Benton, among others, saw the only solution to the crisis in a substantial reduction of the tariff.

In apparent contradiction of his previous claim that the tariff could be enforced with existing laws, on January 16 Jackson sent his Force Bill Message to Congress. Custom houses in Beaufort and Georgetown would be closed and replaced by ships at each port. In Charleston, the custom house would be moved to either Castle Pinckney or Fort Moultrie in Charleston Harbor. Direct payment rather than bonds would be required, and federal jails would be established for violators the state refused to arrest and all cases arising under the state's nullification act could be removed to the United States Circuit Court. In the most controversial part, the militia acts of 1795 and 1807 would be revised to permit the enforcement of the customs laws by both the militia and the regular United States military. Attempts were made in South Carolina to shift the debate away from nullification by focusing instead on the proposed enforcement. [76]

The Force bill went to the Senate Judiciary Committee, chaired by Pennsylvania protectionist William Wilkins and supported by members Daniel Webster and Theodore Frelinghuysen of New Jersey it gave Jackson everything he asked. On January 28, the Senate defeated a motion by a vote of 30 to 15 to postpone debate on the bill. All but two of the votes to delay were from the lower South and only three from this section voted against the motion. This did not signal any increased support for nullification, but did signify doubts about enforcement. To draw more votes, proposals were made to limit the duration of the coercive powers and restrict the use of force to suppressing, rather than preventing, civil disorder. In the House, the Judiciary Committee voted 4-3 to reject Jackson's request to use force. By the time Calhoun made a major speech on February 15 strongly opposing it, the Force Bill was temporarily stalled. [77]

On the tariff issue, the drafting of a compromise tariff was assigned in December to the House Ways and Means Committee, now headed by Gulian C. Verplanck. Debate on the committee's product on the House floor began in January 1833. The Verplanck tariff proposed reductions back to 1816 levels over the next two years while maintaining the basic principle of protectionism. The anti-Jackson protectionists saw this as an economic disaster that did not even allow the Tariff of 1832 to be tested and "an undignified truckling to the menaces and blustering of South Carolina." Northern Democrats did not oppose it in principle, but still demanded protection for the varying interests of their own constituents. Those sympathetic to the nullifiers wanted a specific abandonment of the principle of protectionism and were willing to offer a longer transition period as a bargaining point. The Verplanck tariff was clearly not going to be implemented. [78]

In South Carolina, efforts were being made to avoid an unnecessary confrontation. Governor Hayne ordered the 25,000 troops he had created to train at home rather than gather in Charleston. At a mass meeting in Charleston on January 21, they decided to postpone the February 1 deadline for implementing nullification, while Congress worked on a compromise tariff. At the same time, a commissioner from Virginia, Benjamin W. Leigh, arrived in Charleston bearing resolutions that criticized both Jackson and the nullifiers and offering his state as a mediator. [79]

Clay had not taken his defeat in the presidential election well and was unsure what position he could take in the tariff negotiations. His long-term concern was that Jackson was determined to kill protectionism along with the American Plan. In February, after consulting with manufacturers and sugar interests in Louisiana, who favored protection for the sugar industry, Clay started to work on a specific compromise plan. As a starting point, he accepted the nullifiers' offer of a transition period, but extended it from seven and a half years to nine years with a final target of a 20% ad valorem rate. After first securing the support of his protectionist base, Clay, through an intermediary, broached the subject with Calhoun. Calhoun was receptive, and after a private meeting with Clay at Clay's boardinghouse, negotiations proceeded. [80]

Clay introduced the negotiated tariff bill on February 12, and it was immediately referred to a select committee consisting of Clay as chairman, Felix Grundy of Tennessee, George M. Dallas of Pennsylvania, William Cabell Rives of Virginia, Webster, John M. Clayton of Delaware, and Calhoun. On February 21, the committee reported a bill to the floor of the Senate that was largely Clay's original bill. The Tariff of 1832 would continue except that reduction of all rates above 20% would be reduced by one tenth every two years, with the final reductions back to 20% coming in 1842. Protectionism as a principle was not abandoned and provisions were made for raising the tariff if national interests demanded it. [81]

Although not specifically linked by any negotiated agreement, it became clear that the Force Bill and Compromise Tariff of 1833 were inexorably linked. In his February 25 speech ending the debate on the tariff, Clay captured the spirit of the voices for compromise by condemning Jackson's Proclamation to South Carolina as inflammatory, admitting the same problem with the Force Bill, but indicating its necessity, and praising the Compromise Tariff as the final measure to restore balance, promote the rule of law, and avoid the "sacked cities", "desolated fields", and "smoking ruins" he said the failure to reach a final accord would produce. The House passed the Compromise Tariff, 119-85, and the Force Bill, 149-48. In the Senate, the tariff passed 29-16 and the Force bill 32-1, with many opponents of it walking out rather than voting. [82]

Calhoun rushed to Charleston with the news of the final compromises. The Nullification Convention met again on March 11. It repealed the November Nullification Ordinance and also, "in a purely symbolic gesture", nullified the Force Bill. While the nullifiers claimed victory on the tariff issue, even though they had made concessions, the verdict was very different on nullification. The majority had in the end ruled and this boded ill for the South and its minority's hold on slavery. [83] Rhett summed this up at the convention on March 13. Warning that "A people, owning slaves, are mad, or worse than mad, who do not hold their destinies in their own hands," he continued:

Every stride of this Government, over your rights, brings it nearer and nearer to your peculiar policy. . The whole world are in arms against your institutions . Let Gentlemen not be deceived. It is not the Tariff—not Internal Improvement—nor yet the Force bill, which constitutes the great evil against which we are contending. . These are but the forms in which the despotic nature of the government is evinced—but it is the despotism which constitutes the evil: and until this Government is made a limited Government . there is no liberty—no security for the South. [84]

People reflected on the meaning of the nullification crisis and its outcome for the country. On May 1, 1833, Jackson predicted, "the tariff was only a pretext, and disunion and Southern confederacy the real object. The next pretext will be the negro, or slavery question." [85]

The final resolution of the crisis and Jackson's leadership had appeal throughout the North and South. Robert V. Remini, the historian and Jackson biographer, described the opposition that nullification drew from traditionally states' rights Southern states:

The Alabama legislature, for example, pronounced the doctrine "unsound in theory and dangerous in practice." Georgia said it was "mischievous," "rash and revolutionary." Mississippi lawmakers chided the South Carolinians for acting with "reckless precipitancy." [86]

The historian Forrest McDonald, describing the split over nullification among proponents of states' rights, wrote, "The doctrine of states' rights, as embraced by most Americans, was not concerned exclusively, or even primarily, with state resistance to federal authority." [87] But by the end of the nullification crisis, many Southerners questioned whether Jacksonian Democrats still represented Southern interests. The historian William J. Cooper Jr. notes, "Numerous Southerners had begun to perceive it [the Jacksonian Democratic Party] as a spear aimed at the South rather than a shield defending the South." [88]

In the political vacuum created by this alienation, the Southern wing of the Whig Party was formed. The party was a coalition of interests united by the common thread of opposition to Jackson, and more specifically to his "definition of federal and executive power." The party included former National Republicans with an "urban, commercial, and nationalist outlook", as well as former nullifiers. Emphasizing that "they were more southern than the Democrats," the party grew within the South by going "after the abolition issue with unabashed vigor and glee." With both parties arguing who could best defend Southern institutions, the nuances of the differences between free soil and abolitionism, which became an issue in the late 1840s with the Mexican War and territorial expansion, never became part of the political dialogue. This failure increased the slavery issue's volatility. [88]

Richard Ellis argues that the end of the crisis signified the beginning of a new era. Within the states' rights movement, the traditional desire for "a weak, inactive, and frugal government" was challenged. Ellis writes, "in the years leading up to the Civil War the nullifiers and their proslavery allies used the doctrine of states' rights and state sovereignty in such a way as to try to expand the powers of the federal government so that it could more effectively protect the peculiar institution." By the 1850s, states' rights had become a call for state equality under the Constitution. [89]

Madison reacted to this incipient tendency by writing two paragraphs of "Advice to My Country," found among his papers. It said that the Union "should be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened and the disguised one, as the Serpent creeping with his deadly wiles into paradise." Richard Rush published this "Advice" in 1850, by which time Southern spirit was so high that it was denounced as a forgery. [90]

The first test for the South over slavery began during the final congressional session of 1835. In what became known as the Gag Rule Debates, abolitionists flooded Congress with petitions to end slavery in the District of Columbia, where states' rights was not an issue. The debate was reopened each session as Southerners, led by South Carolinians Henry Pinckney and John Hammond, prevented the petitions from even being officially received by Congress. Led by John Quincy Adams, the slavery debate remained on the national stage until late 1844, when Congress lifted all restrictions on processing the petitions. [91]

Describing the legacy of the crisis, Sean Wilentz writes:

The battle between Jacksonian democratic nationalists, northern and southern, and nullifier sectionalists would resound through the politics of slavery and antislavery for decades to come. Jackson's victory, ironically, would help accelerate the emergence of southern pro-slavery as a coherent and articulate political force, which would help solidify northern antislavery opinion, inside as well as outside Jackson's party. Those developments would accelerate the emergence of two fundamentally incompatible democracies, one in the slave South, the other in the free North. [9]

For South Carolina, the legacy of the crisis involved both the divisions within the state during the crisis and the apparent isolation of the state as the crisis was resolved. By 1860, when it became the first state to secede, it was more internally united than any other Southern state. Historian Charles Edward Cauthen writes:

Probably to a greater extent than in any other Southern state South Carolina had been prepared by her leaders over a period of thirty years for the issues of 1860. Indoctrination in the principles of state sovereignty, education in the necessity of maintaining Southern institutions, warnings of the dangers of control of the federal government by a section hostile to its interests—in a word, the education of the masses in the principles and necessity of secession under certain circumstances—had been carried on with a skill and success hardly inferior to the masterly propaganda of the abolitionists themselves. It was this education, this propaganda, by South Carolina leaders which made secession the almost spontaneous movement that it was. [92]


Examples of Jury Nullification Throughout History

The Barons of England compelled King John to sign the Magna Carta and trial by jury was established. The King thereafter had to seek permission from the people before he could take someone's freedom away.

The jury ended the absolute power of kings.

William Penn and William Mead were prosecuted for preaching the Quaker religion which was against the law in England.

The judge instructed the jury to return a guilty verdict since the men were plainly guilty.

Four jurors, led by Edward Bushell, refused to return the guilty verdict. The judge ordered the jury imprisoned. For two days, the jury refused to return a guilty verdict. The judge ended the trial and ordered the jurors imprisoned until they paid a fine. Bushell refused and spent months in jail. He was eventually released after his habeas corpus petition prompted the Court of Common Pleas chief judge to rule that a jury cannot be punished for their verdict.

Penn and Mead went free and this precedent established freedom of religion.

The Salem Witch Trials began in 1692. After a 100 percent conviction rate and the execution of 33 witches, in 1693, juries decided the court of Oyer and Terminer had gone too far. The next 52 trials ended in hung juries or acquittals. Frustrated, prosecutors ceased bringing cases to trial. Juries made it impossible to kill witches in Salem.

John Peter Zenger&rsquos newspaper criticized the Governor of New York. It was against the law to criticize the government in Colonial America. The Brits charged Zenger with seditious libel. At his trial, Zenger&rsquos lawyer, Andrew Hamilton, admitted Zenger broke the law but asked the jury to acquit because Zenger told the truth.

Chief Justice James Delaney disagreed. "The truth is no defense," he ruled.

Hamilton told the jury they &ldquohave the right… to determine both the law and the fact.&rdquo He said if jurors cannot nullify laws, then "juries (are) useless . . . The next step would make the people slaves."

The jury found Zenger not guilty and established freedom of the press in America.

This verdict and the transcripts of the trial were widely published and encouraged literature critical of England by Franklin, Paine and others which spurred the revolution. If Zenger&rsquos jurors obeyed the judge&rsquos directions, America might still be under British rule.

The fugitive slave law was enacted to help keep slaves who were illegally running away from getting help from abolitionists in the North.

In Syracuse, N.Y., 24 people were indicted for helping a slave escape from jail. A federal judge in Buffalo called the defendants "disturbers of society." Four jury trials ended in three acquittals and compelled the government to drop the charges.

In 1851, a crowd broke into a Boston courtroom, grabbed a slave named Shadrach Minkins and turned him loose. The judge called the defendants&rsquo actions in that case "beyond the scope of human reason."

President Millard Fillmore demanded prosecution. A grand jury indicted three people. After one acquittal and several hung juries, the government was forced to drop all charges.

Because of juries, a network of people organized, knowing northern juries would not convict them. The Southern States seceded. Civil War followed, then the Emancipation Proclamation. If northern juries had followed the law as judges directed, African Americans might still be human property in accordance with federal law.

In Springfield, Mo., Davis Tutt engaged in a one-on-one pistol, quick draw duel with William Hickok. Tutt was killed. Hickok was charged with manslaughter. Mutual combat was against the law.

Witnesses claimed both men fired, but Tutt was the initiator and aggressor. Hickok claimed it was a question of honor. Had Hickok not fought, he would have been branded a coward.

Judge Sempronius Boyd instructed the jury that a conviction was its only option under the law, but added that the jury could call upon a more ancient law, the unwritten law of the "fair fight" and acquit.

The jury acquitted Hickok, who became better known as Wild Bill Hickok.

The US Constitution was amended to prohibit the sale of alcohol because a majority who did not drink wished to impose their morals on the minority of citizens who did. Juries however nullified alcohol control laws about 60 percent of the time. The fact that most juries would not convict on alcohol control laws made the use of alcohol widespread throughout Prohibition. Ultimately jury nullification led to the adoption of the 21st amendment repealing Prohibition.

If juries had obeyed the judge's instructions that "the law is the law," alcohol might still be illegal today.

In the late 19th century, prosecutions on "conspiracy" charges against striking union workers were quashed by jury nullification and gave unions the right to organize, assemble, and go on strike.


Nullification

in U.S. history, a doctrine expounded by the advocates of extreme states' rights states' rights,
in U.S. history, doctrine based on the Tenth Amendment to the Constitution, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
. Click the link for more information. . It held that states have the right to declare null and void any federal law that they deem unconstitutional. The doctrine was based on the theory that the Union is a voluntary compact of states and that the federal government has no right to exercise powers not specifically assigned to it by the U.S. Constitution. The Kentucky and Virginia Resolutions Kentucky and Virginia Resolutions,
in U.S. history, resolutions passed in opposition to the Alien and Sedition Acts, which were enacted by the Federalists in 1798. The Jeffersonian Republicans first replied in the Kentucky Resolutions, adopted by the Kentucky legislature in Nov.
. Click the link for more information. declared (1799) nullification to be the rightful remedy by the states for all unauthorized acts done under the pretext of the Constitution. A closely reasoned reinforcement to the doctrine of nullification was set forth&mdashin response to the tariff of 1828, which favored Northern interests at the expense of the South&mdashby John C. Calhoun Calhoun, John Caldwell
, 1782�, American statesman and political philosopher, b. near Abbeville, S.C., grad. Yale, 1804. He was an intellectual giant of political life in his day. Early Career

Calhoun studied law under Tapping Reeve at Litchfield, Conn.
. Click the link for more information. in his South Carolina Exposition (1828). The strong pro-Union stand of President Jackson brought forth further remonstrances from Southern leaders. After enactment of the tariff act of 1832 South Carolina called a state convention, which passed (1832) the ordinance of nullification. This ordinance declared the tariff laws null and void, and a series of enactments in South Carolina put the state in a position to resist by force any attempt of the federal government to carry the tariff act into operation. President Jackson in reply dramatically issued a strong proclamation against the nullifiers, and a force bill force bill,
popular name for several laws in U.S. history, notably the act of Mar. 2, 1833, and the Reconstruction acts of May 31, 1870 Feb. 28, 1871 and Apr. 20, 1871.
. Click the link for more information. was introduced into the U.S. Senate to give the President authority to use the armed forces if necessary to execute the laws. Jackson, however, felt that the South had a real grievance and, behind his show of force, encouraged friends of compromise, led by Henry Clay, to prepare a bill that the South would accept. This compromise tariff was rushed through Congress, and after its passage (1833) the South Carolina state convention reassembled and formally rescinded the ordinance nullifying the tariff acts. To preserve its prerogative it adopted a new ordinance nullifying the force bill. But the issue was not pressed further until the election of Abraham Lincoln, when the doctrine of secession secession,
in political science, formal withdrawal from an association by a group discontented with the actions or decisions of that association. The term is generally used to refer to withdrawal from a political entity such withdrawal usually occurs when a territory or state
. Click the link for more information. was brought to the foreground.

Bibliography

See C. S. Boucher, The Nullification Controversy in South Carolina (1916, repr. 1968) C. M. Wiltse, John C. Calhoun: Nullifier, 1829� (1949) W. W. Freehling, ed., The Nullification Era (1967) M. D. Peterson, Olive Branch and Sword: The Compromise of 1833 (1982).