A Compilation of the Messages and Papers of the Presidents. Volume 2, part 3: Andrew Jackson, 1st term · Chapter 22Special Messages. (3)
This chapter is not translated yet. You are reading the original.
Against the proceeding in the nature of a distress it is not perceived that the collector can interpose any resistance whatever, and against the process of replevin authorized by the law of the State he, having no common-law power, can only oppose such inspectors as he is by statute authorized and may find it practicable to employ, and these, from the information already adverted to, are shown to be wholly inadequate,
The respect which that process deserves must therefore be considered.
If the authorities of South Carolina had not obstructed the legitimate action of the courts of the United States, or if they had permitted the State tribunals to administer the law according to their oath under the Constitution and the regulations of the laws of the Union, the General Government might have been content to look to them for maintaining the custody and to encounter the other inconveniences arising out of the recent proceedings. Even in that case, however, the process of replevin from the courts of the State would be irregular and unauthorized. It has been decided by the Supreme Court of the United States that the courts of the United States have exclusive jurisdiction of all seizures made on land or water for a breach of the laws of the United States, and any intervention of a State authority which, by taking the thing seized out of the hands of the United States officer, might obstruct the exercise of this jurisdiction is unlawful; that in such case the court of the United States having cognizance of the seizure may enforce a redelivery of the thing by attachment or other summary process; that the question under such a seizure whether a forfeiture has been actually incurred belongs exclusively to the courts of the United States, and it depends on the final decree whether the seizure is to be deemed rightful or tortuous; and that not until the seizure be finally judged wrongful and without probable cause by the courts of the United States can the party proceed at common law for damages in the State courts.
But by making it "unlawful for any of the constituted authorities, whether of the United States or of the State, to enforce the laws for the payment of duties, and declaring that all judicial proceedings which shall be hereafter had in affirmance of the contracts made with purpose to secure the duties imposed by the said acts are and shall be held utterly null and void," she has in effect abrogated the judicial tribunals within her limits in this respect, has virtually denied the United States access to the courts established by their own laws, and declared it unlawful for the judges to discharge those duties which they are sworn to perform. In lieu of these she has substituted those State tribunals already adverted to, the judges whereof are not merely forbidden to allow an appeal or permit a copy of their record, but are previously sworn to disregard the laws of the Union and enforce those only of South Carolina, and thus deprived of the function essential to the judicial character of inquiring into the validity of the law and the right of the matter, become merely ministerial instruments in aid of the concerted obstruction of the laws of the Union.
Neither the process nor authority of these tribunals thus constituted can be respected consistently with the supremacy of the laws or the rights and security of the citizen. If they be submitted to, the protection due from the Government to its officers and citizens is withheld, and there is at once an end not only to the laws, but to the Union itself.
Against such a force as the sheriff may, and which by the replevin law of South Carolina it is his duty to exercise, it can not be expected that a collector can retain his custody with the aid of the inspectors. In such case, it is true, it would be competent to institute suits in the United States courts against those engaged in the unlawful proceeding, or the property might be seized for a violation of the revenue laws, and, being libeled in the proper courts, an order might be made for its redelivery, which would be committed to the marshal for execution. But in that case the fourth section of the act, in broad and unqualified terms, makes it the duty of the sheriff "to prevent such recapture or seizure, or to redeliver the goods, as the case may be," "even under any process, order, or decrees, or other pretext contrary to the true intent and meaning of the ordinance aforesaid." It is thus made the duty of the sheriff to oppose the process of the courts of the United States, and for that purpose, if need be, to employ the whole power of the county. And the act expressly reserves to him all power which, independently of its provisions, he could have used. In this reservation it obviously contemplates a resort to other means than those particularly mentioned.
It is not to be disguised that the power which it is thus enjoined upon the sheriff to employ is nothing less than the posse comitatus in all the rigor of the ancient common law. This power, though it may be used against unlawful resistance to judicial process, is in its character forcible, and analogous to that conferred upon the marshals by the act of 1795. It is, in fact, the embodying of the whole mass of the population, under the command of a single individual, to accomplish by their forcible aid what could not be effected peaceably and by the ordinary means. It may properly be said to be a relic of those ages in which the laws could be defended rather by physical than moral force, and in its origin was conferred upon the sheriffs of England to enable them to defend their county against any of the King's enemies when they came into the land, as well as for the purpose of executing process. In early and less civilized times it was intended to include "the aid and attendance of all knights and others who were bound to have harness." It includes the right of going with arms and military equipment, and embraces larger classes and greater masses of population than can be compelled by the laws of most of the States to perform militia duty. If the principles of the common law are recognized in South Carolina (and from this act it would seem they are), the power of summoning the posse comitatus will compel, under the penalty of fine and imprisonment, every man over the age of 15, and able to travel, to turn out at the call of the sheriff, and with such weapons as may be necessary; and it may justify beating, and even killing, such as may resist. The use of the posse comitatus is therefore a direct application of force, and can not be otherwise regarded than as the employment of the whole militia force of the county, and in an equally efficient form under a different name. No proceeding which resorts to this power to the extent contemplated by the act can be properly denominated peaceable.
The act of South Carolina, however, does not rely altogether upon this forcible remedy. For even attempting to resist or disobey, though by the aid only of the ordinary officers of the customs, the process of replevin, the collector and all concerned are subjected to a further proceeding in the nature of a distress of their personal effects, and are, moreover, made guilty of a misdemeanor, and liable to be punished by a fine of not less than $1,000 nor more than $5,000 and to imprisonment not exceeding two years and not less than six months; and for even attempting to execute the order of the court for retaking the property the marshal and all assisting would be guilty of a misdemeanor and liable to a fine of not less than $3,000 nor more than $10,000 and to imprisonment not exceeding two years nor less than one: and in case the goods should be retaken under such process it is made the absolute duty of the sheriff to retake them.
It is not to be supposed that in the face of these penalties, aided by the powerful force of the county, which would doubtless be brought to sustain the State officers, either that the collector would retain the custody in the first instance or that the marshal could summon sufficient aid to retake the property pursuant to the order or other process of the court.
It is, moreover, obvious that in this conflict between the powers of the officers of the United States and of the State (unless the latter be passively submitted to) the destruction to which the property of the officers of the customs would be exposed, the commission of actual violence, and the loss of lives would be scarcely avoidable.
Under these circumstances and the provisions of the acts of South Carolina the execution of the laws is rendered impracticable even through the ordinary judicial tribunals of the United States. There would certainly be fewer difficulties, and less opportunity of actual collision between the officers of the United States and of the State, and the collection of the revenue would be more effectually secured—if, indeed, it can be done in any other way—by placing the custom-house beyond the immediate power of the county.
For this purpose it might be proper to provide that whenever by any unlawful combination or obstruction in any State or in any port it should become impracticable faithfully to collect the duties, the President of the United States should be authorized to alter and abolish such of the districts and ports of entry as should be necessary, and to establish the custom-house at some secure place within some port or harbor of such State; and in such cases it should be the duty of the collector to reside at such place, and to detain all vessels and cargoes until the duties imposed by law should be properly secured or paid in cash, deducting interest; that in such cases it should be unlawful to take the vessel and cargo from the custody of the proper officer of the customs unless by process from the ordinary judicial tribunals of the United States, and that in case of an attempt otherwise to take the property by a force too great to be overcome by the officers of the customs it should be lawful to protect the possession of the officers by the employment of the land and naval forces and militia, under provisions similar to those authorized by the eleventh section of the act of the 9th of January, 1809.
This provision, however, would not shield the officers and citizens of the United States, acting under the laws, from suits and prosecutions in the tribunals of the State which might thereafter be brought against them, nor would it protect their property from the proceeding by distress, and it may well be apprehended that it would be insufficient to insure a proper respect to the process of the constitutional tribunals in prosecutions for offenses against the United States and to protect the authorities of the United States, whether judicial or ministerial, in the performance of their duties. It would, moreover, be inadequate to extend the protection due from the Government to that portion of the people of South Carolina against outrage and oppression of any kind who may manifest their attachment and yield obedience to the laws of the Union.
It may therefore be desirable to revive, with some modifications better adapted to the occasion, the sixth section of the act of the 3d March, 1815, which expired on the 4th March, 1817, by the limitation of that of 27th April, 1816, and to provide that in any case where suit shall be brought against any individual in the courts of the State for any act done under the laws of the United States he should be authorized to remove the said cause by petition into the circuit court of the United States without any copy of the record, and that the court should proceed to hear and determine the same as if it had been originally instituted therein; and that in all cases of injuries to the persons or property of individuals for disobedience to the ordinance and laws of South Carolina in pursuance thereof redress may be sought in the courts of the United States. It may be expedient also, by modifying the resolution of the 3d March, 1791, to authorize the marshals to make the necessary provision for the safe-keeping of prisoners committed under the authority of the United States.
Provisions less than these, consisting as they do for the most part rather of a revival of the policy of former acts called for by the existing emergency than of the introduction of any unusual or rigorous enactments, would not cause the laws of the Union to be properly respected or enforced. It is believed these would prove adequate unless the military forces of the State of South Carolina authorized by the late act of the legislature should be actually embodied and called out in aid of their proceedings and of the provisions of the ordinance generally. Even in that case, however, it is believed that no more will be necessary than a few modifications of its terms to adapt the act of 1795 to the present emergency, as by that act the provisions of the law of 1792 were accommodated to the crisis then existing, and by conferring authority upon the President to give it operation during the session of Congress, and without the ceremony of a proclamation, whenever it shall be officially made known to him by the authority of any State, or by the courts of the United States, that within the limits of such State the laws of the United States will be openly opposed and their execution obstructed by the actual employment of military force, or by any unlawful means whatsoever too great to be otherwise overcome.
In closing this communication, I should do injustice to my own feelings not to express my confident reliance upon the disposition of each department of the Government to perform its duty and to cooperate in all measures necessary in the present emergency.
The crisis undoubtedly invokes the fidelity of the patriot and the sagacity of the statesman, not more in removing such portion of the public burden as may be necessary than in preserving the good order of society and in the maintenance of well-regulated liberty.
While a forbearing spirit may, and I trust will, be exercised toward the errors of our brethren in a particular quarter, duty to the rest of the Union demands that open and organized resistance to the laws should not be executed with impunity.
The rich inheritance bequeathed by our fathers has devolved upon us the sacred obligation of preserving it by the same virtues which conducted them through the eventful scenes of the Revolution and ultimately crowned their struggle with the noblest model of civil institutions. They bequeathed to us a Government of laws and a Federal Union founded upon the great principle of popular representation. After a successful experiment of forty-four years, at a moment when the Government and the Union are the objects of the hopes of the friends of civil liberty throughout the world, and in the midst of public and individual prosperity unexampled in history, we are called to decide whether these laws possess any force and that Union the means of self-preservation. The decision of this question by an enlightened and patriotic people can not be doubtful. For myself, fellow-citizens, devoutly relying upon that kind Providence which has hitherto watched over our destinies, and actuated by a profound reverence for those institutions I have so much cause to love, and for the American people, whose partiality honored me with their highest trust, I have determined to spare no effort to discharge the duty which in this conjuncture is devolved upon me. That a similar spirit will actuate the representatives of the American people is not to be questioned; and I fervently pray that the Great Ruler of Nations may so guide your deliberations and our joint measures as that they may prove salutary examples not only to the present but to future times, and solemnly proclaim that the Constitution and the laws are supreme and the Union indissoluble.
ANDREW JACKSON.
WASHINGTON, January 16, 1833. To the Senate:
In conformity with a resolution of the Senate of the 31st December last, I herewith transmit copies of the instructions under which the late treaty of indemnity with Naples was negotiated, and of all the correspondence relative thereto.
It will appear evident from a perusal of some of those documents that they are written by the agents of the United States to their own Government with a freedom, as far as relates to the officers of that of Naples, which was never intended for the public eye, and as they might, if printed, accidentally find their way abroad and thereby embarrass our ministers in their future operations in foreign countries, I respectfully recommend that in the printing, if deemed necessary, such a discrimination be made as to avoid that inconvenience, preferring this course to withholding from the Senate any part of the correspondence.
ANDREW JACKSON.
WASHINGTON, January 17, 1833. The Speaker of the House of Representatives:
In conformity with a resolution of the House of Representatives of the 11th December last, I herewith transmit "such portions as have not heretofore been communicated of the instructions given to our ministers in France on the subject of claims for spoliations since September, 1800, and of the correspondence of said ministers with the French Government and with the Secretary of State of the United States on the same subject."
ANDREW JACKSON.
WASHINGTON, January 22, 1833. To the Senate:
Having received on yesterday certified copies of the acts passed by the State of South Carolina to carry into effect her ordinance of nullification, which were referred to in my message of the 16th instant to Congress, I now transmit them.
As but one copy of these acts was sent to me, I am prevented from communicating them by a joint message to the two Houses of Congress.
ANDREW JACKSON.
WASHINGTON, January 23, 1833. The President of the Senate:
A treaty of peace, friendship, and amity between the United States and the King of the Belgians having this day been concluded by the plenipotentiaries of the respective countries, I herewith transmit it to the Senate for its consideration.
ANDREW JACKSON.
The Speaker of the House of Representatives:
I transmit to the House of Representatives a report of the Secretary of State, with a list of appointments made by the Executive since the 13th of April, 1826, from members of Congress during their term of service and for twelve months thereafter, pursuant to the resolution of the said House of the 26th of December, 1832, which I referred to him, and which appointments are recorded in his office. I send likewise a list of similar appointments, also furnished by the Secretary of State and of record in his office, from the 3d of March, 1825, to the 13th of April, 1826.
ANDREW JACKSON.
To the House of Representatives:
I send herewith a convention concluded on the 14th day of October last between the United States and His Majesty the King of the Two Sicilies. This treaty has been ratified by me agreeably to the Constitution, and the ratification will be dispatched to Naples without delay, when there is no doubt it will be ratified by His Sicilian Majesty.
The early communication of this treaty is deemed proper because it will be necessary to provide for the execution of the first article in order that our fellow-citizens may with as little delay as possible obtain the compensation stipulated for by this convention.
ANDREW JACKSON.
WASHINGTON, January 25, 1833. The Speaker of the House of Representatives:
I transmit herewith, for the information of Congress, the report of the officer to whom was intrusted the inspection of the works for the improvement of the navigation of the Ohio and Mississippi rivers.
ANDREW JACKSON.
WASHINGTON, January 29, 1833. To the House of Representatives:
I herewith transmit to the House of Representatives a report from the Postmaster-General, which I request may be considered as forming a part of my message of the 23d instant, in answer to the resolution calling for a list of all appointments made by the Executive since the 13th April, 1826, from the members of Congress during their term of service and for twelve months thereafter, etc.
ANDREW JACKSON.
WASHINGTON, February 7, 1833. To the Senate and House of Representatives:
I transmit, for the consideration of Congress, a report from the Secretary of State, on the subject of our diplomatic intercourse with foreign nations.
ANDREW JACKSON.
WASHINGTON, February 12, 1833. To the Senate:
In compliance with the resolution of the Senate requesting the President of the United States to lay before it "copies of the orders which have been given to the commanding officers of the military forces assembled in and near to the city of Charleston, S.C., and also copies of the orders which have been given to the commander of the naval forces assembled in the harbor of Charleston, particularly such orders, if any such have been given, to resist the constituted authorities of the State of South Carolina within the limits of said State," I transmit herewith papers, numbered from 1 to 17, inclusive, embracing the orders which have been given to the commanding officers of the land and naval forces assembled in and near the city of Charleston and within the limits of the State of South Carolina, and which relate to the military operations in that quarter. No order has at any time been given in any manner inconsistent therewith. There is a part, however, of the letter of the Secretary of War dated December 3, 1832, omitted, which, being conditional in its character, and not relating to the operation of the troops, it is deemed improper in the present state of the service to communicate.
No order has been at any time given "to resist" the constituted authorities of the State of South Carolina within the chartered limits of said State.
ANDREW JACKSON.
WASHINGTON, February 12, 1833. To the Senate:
I transmit herewith to the Senate, for their advice and consent as to the ratification of the same, a treaty recently concluded between the commissioners for adjusting all differences with the Indians west of the Mississippi and the mixed band of Shawnese and Senecas who emigrated from Ohio. I transmit also the journal of their proceedings.
ANDREW JACKSON.
WASHINGTON, February 15, 1833. To the Senate:
I transmit herewith to the Senate, for their advice and consent as to the ratification of the same, articles of agreement supplemental to the treaty of February 8, 1831, between the commissioner on the part of the United States and the Menominee tribe of Indians, with the assent of the New York Indians.
I transmit also the journal of proceedings.
ANDREW JACKSON.
WASHINGTON, February 19, 1833. To the Senate:
The renomination of Samuel Gwin to be register of the land office at Mount Salus, in the State of Mississippi, having been on the 16th of July last laid upon the table of the Senate, with a resolution declaring that it was not the intention of the Senate to take any proceeding in regard to it during that session, a vacancy in the office was found existing in the recess, which the public service required to be filled, and which was filled by the appointment of Samuel Gwin. I therefore nominate the said Gwin to the same office.
In addition to the papers which were transmitted with his nomination at the last session, I have received others from the most respectable sources in the State of Mississippi, bearing the fullest testimony to his fitness for the office in question. Of this character are the two now inclosed, signed by members of the convention recently assembled to revise the constitution of the State, and also by many members of its present legislature. They also show that the appointment of Mr. Gwin would be acceptable to the great body of the people interested in the office.
ANDREW JACKSON.
WASHINGTON, February 22, 1833. To the House of Representatives:
I transmit herewith, for the consideration of the House, a letter from General Lafayette to the Secretary of State, with the petition which came inclosed in it of the Countess d'Ambrugeac and Madame de la Gorée, granddaughter of Marshal Count Rochambeau, and original documents in support thereof, praying compensation for services rendered by the Count to the United States during the Revolutionary war, together with translations of the same; and I transmit with the same view the petition of Messrs. De Fontenille de Jeaumont and De Rossignol Grandmont, praying compensation for services rendered by them to the United States in the French army, and during the same war, with original papers in support thereof, all received through the same channel, together with translations of the same.
ANDREW JACKSON.
WASHINGTON, February 22, 1833. To the Senate of the United States:
I transmit to the Senate, for its advice and consent as to the ratification of the same, a treaty of commerce and navigation between the United States and Russia, concluded and signed at St. Petersburg on the 18th of December, 1832, by the plenipotentiaries of the two parties, with an additional article to the same, concluded and signed on the same day, together with an extract from the dispatch of the minister of the United States at St. Petersburg to the Secretary of State, communicating the said treaty and additional article.
ANDREW JACKSON.
WASHINGTON, February 26, 1833. To the Senate:
I transmit herewith, for the advice and consent of the Senate as to the ratification of the same, a treaty concluded with the Ottawa Indians residing on the Miami of Lake Erie on the 18th instant by the commissioners on the part of the United States,
ANDREW JACKSON.
WASHINGTON, March 2, 1833. To the Senate:
I transmit herewith, for the consideration of the Senate, a report from the Secretary of State, in relation to the consular establishment of the United States.
ANDREW JACKSON.
WASHINGTON, March 2, 1833. To the Senate:
I have made several nominations to offices located within the limits of the State of Mississippi which have not received the approbation of the Senate. Inferring that these nominations have been rejected in pursuance of a resolution adopted by the Senate on the 3d of February, 1831, "that it is inexpedient to appoint a citizen of one State to an office which may be vacated or become vacant in any other State of the Union within which such citizen does not reside, without some evident necessity for such appointment," and regarding that resolution, in effect, as an unconstitutional restraint upon the authority of the President in relation to appointments to office, I think it proper to inform the Senate that I shall feel it my duty to abstain from any further attempt to fill the offices in question.
ANDREW JACKSON.
The President of the Senate:
In compliance with a resolution of the Senate passed the 1st instant, requesting "that the President inform the Senate, if not incompatible with the public interest, what negotiation has been had since the last session of Congress with Great Britain in relation to the northeastern boundary of the United States, and the progress and result thereof; also whether any arrangement, stipulation, or agreement has at any time been made between the Executive of the United States and the government of the State of Maine, or by commissioners or agents on the part of the United States and that State, having reference to any proposed transfer or relinquishment of their right of jurisdiction and territory belonging to that State, together with all documents, correspondence, and communications in relation thereto," I inform the Senate that overtures for opening a negotiation for the settlement of the boundary between the United States and the British provinces have been made to the Government of Great Britain since the last session, but that no definitive answer has yet been received to these propositions, and that a conditional arrangement has been made between commissioners appointed by me and others named by the governor of Maine, with the authority of its legislature, which can not take effect without the sanction of Congress and of the legislature aforesaid, and which will be communicated to them as soon as the contingency in which alone it was intended to operate shall happen. In the meantime it is not deemed compatible with the public interest that it should be communicated.
ANDREW JACKSON.
VETO MESSAGES.[16]
[Footnote 16: Pocket vetoes.]
WASHINGTON, December 6, 1832. To the Senate of the United States:
I avail myself of this early opportunity to return to the Senate, in which it originated, the bill entitled "An act providing for the final settlement of the claims of States for interest on advances to the United States made during the last war," with the reasons which induced me to withhold my approbation, in consequence of which it has failed to become a law.
This bill was presented to me for my signature on the last day of your session, and when I was compelled to consider a variety of other bills of greater urgency to the public service. It obviously embraced a principle in the allowance of interest different from that which had been sanctioned by the practice of the accounting officers or by the previous legislation of Congress in regard to the advances by the States, and without any apparent grounds for the change.