The Nullification Controversy in South Carolina/Chapter 10
THE TEST OATH (1833-35)
As the time approached for the legislative session the papers began to discuss the oath question more fully. The nullification papers declared that the oath would be passed by the legislature. The Union papers were filled with warnings against such action. They pleaded with their opponents to be satisfied with the victory they claimed to have won and to give the people a respite from the most angry and distracting party contest ever witnessed in the state. The Nullifiers were warned that the Union men would no longer tamely submit to the tyranny of being excluded from office because they would not swear to the truth of nullification. The Union men continually endeavored to make it clear that they did not object to a mere oath of allegiance to the state, but only to an oath of allegiance clothed in language which amounted to a denial of their federal obligations. Such an act, they asserted, would rekindle the flames of party discord and again involve the state in complete disorder, for those districts in which the Union party was still in the ascendancy would "choose political disorganization sooner than yield to such an arbitrary measure."
There were some in the State Rights party who, up to a very late date, doubted the wisdom of the passage of an oath unless some emergency made it necessary to the safety of the state. They would not advocate it positively, but would let the legislature decide on its expediency. Some of this class were converted just before the legislature met, probably by the tone of the presses, into active advocates of an oath.
The oath was the only important question before the legislature. The Nullifiers finally passed a law abolishing all the military commissions in the state militia and requiring all who should thereafter be elected to take the following oath of allegiance to the state in addition to the oath of office required by the state constitution: "I, A.B., do solemnly swear, or affirm, that I will be faithful and true allegiance bear to the state of South Carolina; and that I will support and maintain, to the utmost of my ability, the laws and constitution of this state and the United States; so help me God." Of course the Union men opposed it bitterly, but in vain. Some few of the Nullifiers still opposed it; of the Charleston delegation only one fought against it. There could be no doubt left as to the interpretation of the oath intended by the Nullifiers, for they voted down in the Senate an amendment which provided "that nothing herein contained shall be construed so as to impair or in any manner affect the allegiance now due by the constitution of this state and of the United States."
The State Rights men contemplated a further exclusion of Union men, for they passed for the first time a bill to amend the state constitution so as to add a similar oath to be required of all officers in the state. The oath was to be extended from the military to the civil list. As an amendment to the constitution required the approval of two successive legislatures, the question would not be finally settled until the next year, when a new legislature would convene. The oath for all officers, which was proposed to be incorporated in the constitution by amendment, and on which the people were to decide finally at the next fall elections, was:
I do solemnly swear, or affirm, that I will be faithful and true allegiance bear to the state of South Carolina so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this state, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof and preserve, protect and defend the constitution of this state and of the United States; so help me God.
Thirteen of the senators, belonging to the Union party, drew up and published, on December 16, a protest against the oath as unnecessary if it were not to be interpreted as interfering with the oath to the federal Constitution, and as unwarrantable if it were to be so interpreted. A plot of a preliminary vote in the House on the oath question shows that the ranks of the Nullifiers were broken somewhat by the loss of some who refused to continue further the persecution of the Union men. But those who at first hesitated were later persuaded to vote for the oath. Although the oath as adopted by the legislature did not in so many words demand paramount allegiance to the state, the Union men believed that all circumstances pointed to that interpretation. To them the oath in the military bill
Map IX.—House vote on the test oath, 1833
was pregnant with a meaning beyond its literal signification; when viewed in connection with the ordinance of the late convention, from which they believed it might be said to have emanated, it became to all intents and purposes an oath of paramount allegiance to the state, which no one who believed in the supremacy of the federal Constitution could take with a blameless conscience, because the ordinance had defined allegiance as something distinct from and superior to the obligation to support the constitution and laws of the state and the Union, and declared it to belong exclusively to the state. When to this was added the fact that the party which passed the oath of allegiance in the legislature was the same that defined allegiance in the convention; that nearly every speaker in the legislature in favor of the oath supported it as an oath of paramount allegiance; and that the amendment of Daniel E. Huger in the Senate, proposing that the oath should not be so construed as to impair the allegiance hitherto due to the Union, was defeated; its motive and its construction became too obvious to permit a Union man to take it without being recreant to his principles. The Union party would be ever ready to swear all allegiance and yield all obedience to the state consistent with the federal Constitution, but no lure of office, no fear of martyrdom would induce its adherents to assume an obligation of even doubtful import, exacted by the dominant party as a political test which might bring suspicion upon their motives and principles.
It was pointed out by the Union men that there were some few members of the legislature of the ruling party who still insisted that the oath was expressly put in its present form to leave open the question of exclusive allegiance, and that it was not intended to proscribe the Union men for adherence to their former faith. These gentlemen were urged to speak through the press, for if they could get the majority of their party to admit that the oath was not intended to exact paramount allegiance to the state, they would prove it to be harmless, remove all ground for excitement, and perhaps dissipate the portentous cloud of civil war. But no such interpretation came from the dominant party.
The Union papers called attention to some of what they regarded as "mean details of the nefarious military bill." The first section of this act revoked the commissions of the major- and brigadier-generals and gave the legislature power to appoint those officers ad interim. This the legislature did at once, and thus the dominant party dispossessed the only two Union generals in the state, James Blair and James Rogers. The election recurred again to the people, but, it was asked, was not this one move toward robbing the people of their elective franchise?
Section six provided that on April 10 the commission of every militia officer of the state should be vacated. On April 11 an election would take place throughout the state for the purpose of choosing officers to fill the places of those who had been turned out. In some districts Union men would be elected; if they should refuse to accept the office and take the oath prescribed, the colonel would appoint men to fill the vacancies thus occasioned; and if the person appointed refused to accept the office, he was to be tried by a court martial, from which there was no appeal, and was to be fined $20.
Another section of this "warlike act" provided that the buttons worn upon the uniforms of all officers should bear the "Palmetto Emblem." At a time of less excitement the palmetto button would not have been objected to; but at this time, since this emblem had been adopted as the insignia of a party whose sole object seemed to be the dismemberment of the republic, the Unionists of the mountain districts announced that they would "never suffer it to disgrace their persons" until they had been "driven across 'the last ditch.'" Scarcely a Union man mentioned this act without pronouncing it uncalled for and tyrannical in the highest degree.
Some few there were among the Union party who were willing to take the oath, regarding it as perfectly harmlesis, because they believed it could be construed as each individual liked. These were assured by the great majority of the party, however, that the judges who were very likely to be Nullifiers would not so interpret it, but would demand, as the Nullification party urged in the legislature, exclusive allegiance to the state and a paramount obligation to defend and uphold the sovereignty of South Carolina whenever it might come into conflict with the sovereignty of the United States.
Union writers told their party that its supporters must submit in quiet humility, migrate, or resist. If the first course were followed, they would suffer martyrdom, it was true, but it would be that kind of martyrdom which a censorious world termed base submission. They would be marshaled in the ranks where they were held unworthy to share the command; they would be marched to and fro, be exhibited, sneered at, and despised by every upstart whose "only patent for sense or capacity" was "his diploma from the Jacobin Club." Would "the brave mountaineers of Carolina submit to it? They must change their nature first." If they migrated, then "they must take up their household gods and with all the world before them where to choose, and Providence their guide, seek in other climes a resting place where a free man could deign to live. Aye, they must leave the scenes of their childhood and the graves of their fathers and wander abroad from the inhospitable boundaries of a once generous and high minded state, like the exiled Poles, 'a caravan of woe.'" The last course, resistance, would "plunge the steel into the bosoms of sons, fathers, and brothers.'
Some of the Union men argued that the convention had no right to authorize the legislature to enact new oaths to supersede or modify those contained in the constitution. The convention itself, they said, could not have amended the constitution unless it had been elected by the people for this particular purpose. At all events, they declared, it must be admitted that they could not delegate their power of amendment; yet when they authorized the legislature to impose the new oaths they undertook to delegate authority to alter the constitution, where an oath of fidelity to the state was already imposed; it therefore followed that the legislature could not pass a law imposing a new oath on the military officers of the state, pretending to derive their right to do this" from the convention. The Nullifiers in answer attacked the Union party for now objecting that the convention went beyond its true power, when in objecting to the call of the convention the Unionists had asserted that the convention would be all-powerful. The Union presses then answered that it had been argued that a convention might act as if it were omnipotent, but not that it would have the right so to act, and that the event had justified the fears of its opponents.
In the upper part of the state, in the mountainous districts and in Greenville especially, the Union men showed signs of forcible resistance. When the ordinance of 1832 was passed, "the freemen of the mountain districts" were much exasperated, but the excitement then was said to be not nearly so intense or universal as now. Immediately after the legislature adjourned, meetings were held in rapid succession, each one seeming more determined in tone than the preceding. On January 4 the resolutions of a local Greenville meeting exhorted the officers to hold their commissions in defiance of the act, and the people swore not only to obey no officer who took the oath, but to stand by their "own true officers to death." In Darlington, Spartanburg, York, Anderson, Pickens, Laurens, Abbeville, Chester, Horry, Williamsburg, and other places in the interior, local and general district meetings were held to denounce the oath and pledge various degrees of resistance to it. The Mercury tried to make light of this "silly effort to get up an excitement," but it soon proved to be more than a "silly effort"; it was an outburst of public indignation which deserved and demanded consideration. On sale day, on February 3, a district meeting was held in Greenville, according to previous announcement. It was pronounced the largest assemblage of Union men ever convened in the district. Resolutions were adopted which did not contain as strong language as several of those from the local meetings, and a respectable minority of the committee of twenty-four who drew them up objected to them on that account. The resolutions declared that the Unionists would first use those means which were legal to get a repeal of the military act and an abandonment of the proposed amendment to the constitution. They would not in any way aid or assist in carrying into effect the act, and should an attempt be made to levy fines upon them for their refusal so to act, they would look for protection to the "virtue, intelligence, independence, and patriotism" of their fellow-citizens. In order to defeat the operations of the military act they would run Union candidates for all militia offices to be filled on April 11, and they would neither obey any orders nor do militia duty under officers who might be appointed over them. In March the people of the lower country were up and doing. Although they did not move as soon as the people of the mountains, they appeared to make up for lost time by their spirit and zeal in opposition to the work of the legislature.
In February there was agitation for another meeting of the Union convention to decide on a course of action for the party at large before April 11. The result was a call for the convention to meet in Greenville on the fourth Monday in March, and the districts at once began to appoint delegates. On March 24 the convention met with no delegates. A committee of twenty, composed of a delegate from each district represented, was appointed to draft the customary "Preamble and Resolutions." Several communications were presented from districts whose delegates were unavoidably prevented from attending; they pledged life and property to sustain the proceedings of the convention. The short notice given and the lack of speedy means of travel made it impracticable or impossible for many distinguished members of the party to reach Greenville in time. The preamble reviewed the objections of the Union men to the oath and stated that they regarded this attempt to make them violate their obligations to the United States as one of a series of measures devised to destroy the government of the country and to dissolve the Union; they expressed the hope and the belief that their opponents would not be insistent to the point of shedding blood, but if they were driven to it, force would be opposed by force. They would try every peaceful and constitutional remedy first and hoped that the judicial tribunals would relieve them. The resolutions were much like those of the earlier Greenville district meeting; they recommended that the Unionists should elect officers of their own party whenever they had the power to do so, and not serve under any officer who might be appointed to command them. They then provided for a system of organization for the party. A conunittee of five members was appointed to correspond with a committee of three in each regiment, who should correspond with a committee of three or more in each beat company. These committees were together to form a convention to meet whenever and wherever required to do so by a majority of the committee of five. Though the members of the convention seemed to display an unalterable resolution to "resist even unto death if necessary" rather than submit to the "tyranny of their opponents," they seemed anxious to adopt such a course as would make the Nullifiers the aggressors. Without commencing or provoking any hostilities they tried to make preparations to repel any attack made upon themselves.
Meetings were soon held in the various districts to receive the reports of their delegates and approve the action of the convention. At the Charleston meeting Joel R. Poinsett related an incident of the convention which showed how serious the Union men considered their position. The officers of a regiment assured him that if the test oath should be enforced they were ready with their regiment to shoulder their muskets and "seek liberty of conscience and the right of freemen in another clime"; they desired to know from him whether the general government would not assign them a territory for that purpose. He told them to "stand fast"; that they had a right to the soil, and that the "laws and authority of their country" would protect and shield them from tyranny where they stood; that for his part, here he was born here he was resolved to die, and no persecution should drive him from the soil of Carolina, where "the Star Spangled Banner should be his shroud, pure and spotless, he hoped; but even if stained with blood, still it should be his shroud."
Meantime the Nullifiers persistently claimed that there was nothing in the oaths to which exception could be taken. Their papers day after day printed them as the best argument that there was nothing objectionable in them. Their editors argued that neither oath was at all different from that in half the states of the Union. They protested that the people of the interior were being aroused by misrepresentation. Some belittled the paper belligerency of the Union party and pronounced it simply a scheme to frighten the opposition into calling an extra session of the legislature to repeal the military oath. Others believed that the agitation was waged as a war cry, needed by the leaders, men anxious to run for Congress, to keep the party together. The Greenville convention, indeed, was said to be nothing more than a means to regain party ascendancy, and the Mercury constantly referred to it as "the late electioneering doings."
When the elections for militia officers were held, several Union men were elected. These men refused to take the oath, and their commissions were withheld. Several cases went to the courts, but probably one of the first, which attracted the most attention and was followed eagerly by all as the test case, arose in Charleston. Judge E. H. Bay, of Charleston, on March 4 rendered a decision in favor of the constitutionality of the military oath. In this case there was a motion for a mandamus to Colonel B. F. Hunt, who commanded the Sixteenth Regiment of the South Carolina Militia, requiring him to give a commission to Edward McCrady as first Lieutenant in the Washington Light Infantry, a company of the Sixteenth Regiment, The Judge held that Colonel Hunt was warranted in refusing the commission because McCrady had refused to take the oath prescribed in the tenth section of the militia act. An appeal was immediately made to the court of appeals. The lawyers on the Union side announced that they expected to carry it from that court to the federal court, if necessary. The case was brought before the court of appeals in Charleston on March 31, but as one of the three judges was not able to attend, the case was ordered to be reargued at the next session of the court in Columbia in May.
During April and May the papers were filled with the arguments before the court. Every part of them was picked to pieces, and some references were made to the court by the Nullifiers which the Union presses cited as efforts to intimidate the judges." On June 2, after a hearing that had been watched eagerly all over the state, the court of appeals by a vote of two to one annulled the test oath; Judges Joseph Johnson and J. B. O'Neall were together against Judge William Harper. They held that the convention had gone beyond its powers in its attempt to delegate power to the legislature to pass the oath as an ordinary enactment.
The Union papers, of course, rejoiced greatly, and some predicted that this would put an end to the oath controversy. The Nullifiers soon reminded them, however, that this was by no means the end. They meant to make the oath the issue in the next election, carry it through the legislature again by two-thirds, and thus have it a part of the constitution, beyond the reach of Union judges. Some of the Nullifiers saw that it would be best to take no rash or violent step which would excite sympathy for their opponents; they resolved quietly to direct their whole energies to the fall elections. But there were others who thought that the ultra-consolidation opinions of O'Neall and Johnson justified immediate and severe rebuke. Some talked of an immediate call of the legislature to remove the judges. Others thought the governor ought to nullify the decision by withholding commissions. Some of the presses at once began and continued for some time an abusive tirade against the Union judges. Some there were who thought that the convention had committed an error in discussing the oath and in giving it an importance that it would not otherwise have had; that the legislature had made a greater error in passing it in the military bill; and that the greatest of all errors would be to attempt to retrieve by calling an extra session of the legislature to remove the judges. Some even admitted that the judges were right in their decision, but felt that the doctrines put forth by Johnson and O'Neall were uncalled for and so extreme as to demand the removal of these judges in a quiet way at least.
State Rights meetings were held in many quarters to denounce the decision of the court as containing dangerous doctrines, to declare that the appeal court should be remodeled or abolished, and to suggest an extra session of the legislature for the purpose of passing a law defining treason against the state and providing new safeguards for the state. Others were more moderate and would leave it all to the October elections; to this end they began to revive the State Rights associations so that they might address the people on the heresies of the decision and rally them to the election.
The Union papers in turn defended Judges O'Neall and Johnson and had much to say about the abuse of them and the agitation to remodel the court. The independence of the judiciary was strongly pleaded for.
Governor Hayne made the deciding move on June 12. He issued a proclamation announcing the decision of the court of appeals as effective and his own decision to issue commissions on the basis of the old oath without requiring the new one. He had decided on this course only after thorough consideration and consultation with John C. Calhoun, William C. Preston, James Hamilton, Jr., George McDuffie, and other leaders of the party. He had discovered that the question was one of great delicacy and difficulty, and one concerning which there was much difference of opinion. "On the one hand," he said in a letter to Hammond, written on the day he issued the proclamation, "the outrage is so monstrous that the failure to meet it promptly and decisively may have a depressing effect; but on the other hand, there is much danger of rash action under the impulse of popular excitement." The decisive point was this: if the legislature were called at once, what could it do? The members of the legislature could not call a convention, amend the constitution, impeach or remove the judges, nor do any act which required a vote of two-thirds. This he had ascertained "beyond a reasonable doubt." An unsuccessful attempt at any one of those measures might prove disastrous to the party. The members of the legislature therefore could do nothing more than express opinions and amend the militia law in conformity with the decision, unless they should remodel the court so as to have the decision reversed. This last possibility, Hayne thought, would be extremely hazardous while the amendment of the constitution was pending before the public, and he knew that it would produce a schism in the party.
Yet anything short of this would be doing nothing, for it would be worse than useless to attempt to legislate with a partisan court ready to arrest your laws. As the legislature can do nothing effectual at present, except what it would not be expedient to do, or even to attempt, I think there is nothing to be gained by an extra call while it would be attended with some risk of dissensions among ourselves and injury to our cause from rash measures. The delay of a few months, if we can in the meantime secure the amendment to the constitution, will give us invincible strength. The moderation thus displayed, the decisive expression of public opinion at the polls, followed by the adoption of the constitutional amendment, settling the question of allegiance in South Carolina forever, will give us a moral power against which the judges cannot stand up.
The only risk involved in this course was that it would fall short of public expectation and thereby paralyze the energies of the party. This could be avoided, Hayne believed, by public meetings and addresses, a revival of the associations, and all the means previously found so successful. "If the governor," he added, "shall be considered as having erred in not giving vent to the indignant feelings of the party, by an immediate call of the legislature, the blame can be thrown upon him without impairing the spirit of the party, who will know that he goes out of office in December next, and even if he were so disposed could present no further obstacle in their way."
During the remainder of the summer the Union papers criticized the dissenting opinion of Judge Harper and defended the opinions of Judges O'Neall and Johnson, while the Nullification papers were just as ready to denounce the latter and defend the former." This led to several series of articles on theories of sovereignty, allegiance, and obedience, all of which were part of the campaign of education for the fall elections. In May, before the decision of the court of appeals had been rendered, the Nullifiers made a great clamor over a discovery they claimed to have made, that the Union party was organizing a military force to resist the enforcement of the oath. Even before this there were rumors that the Union men were preparing a military organization to oppose the decision, which the Nullifiers expected would uphold the oath in spite of the fact that two of the three judges were Union men. The basis for the clamor of the Nullifiers was the following letter, which was secured from a messenger by the Nullifiers and widely published by them. It was dated Abbeville Court House, April 17, 1834, and read:
The committee of five have assigned the five divisions of this state. This district is included in the division assigned to Colonel Robert Cunningham, who has just written to me to urge an immediate and active organization of the regiments of the district, and report to him
without delay the effective strength, equipments, etc., etc. of each company. You will please, therefore, make out the report for the company you command and send it to me without the least delay; you and your subaltern officers constitute the company committee. I have here drawn a form for your guide.
It was signed by Thomas P. Spierin, and a postscript was added, "N.B. Confine your return to Union men only."
With this letter was published a form for reports from the company officers as to the munitions they could rely upon. In the list were mentioned many tools and implements which might be used as weapons, among which were "battle-axes and butcher knives." These seemed particularly to delight the fancy of the Nullifiers for purposes of ridicule and scorn. The "exclusive friends of peace and order," as the Nullifiers termed their opponents, were now said to have been guilty of unpardonable deceit, for while publicly adopting resolutions in their convention favoring resort to the court of appeals, professing nothing but peace, seeming to have given up all idea of military organization, they were secretly organizing a force to be armed with guns, bayonets, butcher knives, and battle-axes to resist by violence the decision of the court, should it be adverse to their wishes. Surely they could not pretend that all this preparation was merely for the purpose of defense, said their accusers. That was, however, distinctly the purpose alleged by the Unionsts; they wished to guard against an attempt of the Nullification party to enforce the oath in spite of an adverse decision. They justified the contemplation of such a possibility by the fact that the Nullification officers were enforcing the military oath while its constitutionality was still pending before the court of appeals.
After the decision of the court was announced and the Nullifiers had decided to abide by it and await the result of the next election, they frequently praised themselves for their moderation and forbearance. Necessity, however, probably more than anything else, dictated the adoption of this policy. Many who thought that Robert Cunningham "should have been made a head shorter," asked, "Why have we not an act against treason?" and declared that it "should have been one of our first moves." Other Nullifiers there were who considered the entire unfortunate affair the result of bad management, for which Governor Hayne was largely responsible; they believed that he more than anyone else was to blame for the oath being put into the military act and for not raising the issue solely in the form of the constitutional amendment. By this policy the Union party, instead of being disorganized as the governor had hoped, was furnished with a rallying cry and was greatly strengthened.
From the time of the governor's proclamation the Nullifiers began actively to organize and to campaign for the fall contest. In Charleston the Revolutionary Society and the '76 Association had coalesced and formed the Whig Association, a Nullification, anti-Jackson political organization. This proved the cue for the rest of the state, and during the summer Whig associations were formed in many quarters. July 4 was a convenient occasion for the promotion of these societies. The Nullification party declared that the great battle which was to decide whether it were to lose the fruits of all its victories in the cause of state rights was to be fought at the polls in October. Even Judge Johnson had been constrained to admit that the adoption of the proposed amendment of the constitution would remove all legal objections and compel the judges to enforce it. It was clear, therefore, that the Union men must by some means manage to defeat the amendment or be compelled to take the oath and acknowledge their allegiance to the state. To prevent this contingency no stone must be left unturned, and greater efforts must be made in the October election than had been put forth at any stage of the controversy. It was, for the Union party and its principles, asserted the Nullifiers, a struggle for life or death. Allegiance to South Carolina recognized the sovereignty of the state; and men might say what they pleased, but the true—they felt that they might say almost the only—difference between the parties arose from the admission or denial of state sovereignty. The Unionists really believed, said the Nullifiers, that the government was a consolidated government, a great nation, one and indivisible; while the State Rights party believed it to be a federal or confederated government, founded in compact between free, sovereign, and independent states, imited only for special purposes, written down in the Constitution, and in which each state retained its sovereignty unimpaired; this was the point on which the whole controversy turned, and the amendment of the constitution would settle the question in South Carolina forever; this was the vital importance of the October elections. The Unionists knew all this, said the State Rights men, and though confessedly in a minority they still hoped they might be able to carry one-third of the members either in the Senate or in the House; and as this would defeat the amendment they would pursue this last hope in great desperation. Let the State Rights party then be on its guard.
In an effort to discredit the Union party, the Nullifiers did all they could to prove that the Unionists were contemplating a resort to arms to resist the oath. To prove this, and to show that the creed of the party was one of pure consolidation, they cited an appeal in behalf of the Union party to the people of the United States, published in the National Intelligencer and copied by the Union papers in South Carolina. They asserted that the appeal was no less than an advance to a close union between the consolidationists of the North and of the South. It was a proffer from the latter of an offensive and defensive alliance to secure in advance the sympathy and support of its "national" allies, when the Unionists should be "driven to the field" to uphold the creed of Daniel Webster. They had thus registered their adherence to the champion of the tariff and the sworn enemy of southern and state rights. In his cause and for his creed they were willing to take up arms. This appeal, said the Nullifiers, displayed the Unionists in their true light, as betrayers of the South.
The Union men worked strenuously to prevent their opponents from gaining complete control of another legislature. They pointed out that the Nullifiers would require not only all officers to take this "revolting oath," but that the voters might be called upon next to do so. Then would come the bill defining treason, with its "pains and penalties," the destruction of the appeal court and anything else that might "enter the heads of the most reckless despots that ever ruled a kingdom, republic, or state." It was proposed by the Union leaders that the people hold meetings throughout the state and sign a solenm protest against the test oath. Their numbers, when shown to the legislature, might have its influence. It was suggested that papers should be drawn up for this purpose in every beat company in the state, and that every man who "valued his liberty and the freedom of thinking for himself" should sign such a remonstrance. In this way only could the strength of the anti-test oath party be made known, for the representation in the coming legislature, it was said, would not be a fair expression of the voice of the people on the subject; for example, in Pendleton district there were said to be 1,400 voters opposed to the test oath, yet that district would send her whole representation, seven representatives and one senator, in favor of the oath; in York district there had been a difference of but twenty-six or twenty-eight votes between the two parties at the last election, yet the entire representation belonged to the test oath party and this party might again gain control by such a narrow margin.
Great efforts were made by the Union party to convince the people that theirs was no common warfare; it was one of defense against "wanton oppression and implacable tyranny," aimed immediately at the Union party in South Carolina, but having for its ultimate object the destruction of the national Union. Let none be deluded by the artifices of the Nullifiers; they would "sing the siren song of peace and try to charm and cheat the Union party into the belief that they were as harmless as doves"; they would fain persuade the Union men that the proposed oath of allegiance required no pledge inconsistent with the Union men's cherished opinions; but all this was only a mask assumed to influence the pending elections and to be cast aside as soon as it should have served the purpose. Their object and their fixed resolve was to pass the oath in the meaning of the ordinance of the convention and thus render it in effect an abjuration of allegiance to the Union, "a severance of the hallowed tie of American citizenship." Their meditated assault upon the independence of the judiciary, "the most sacred column of our social edifice, was cited as an example of the means they might adopt to accomplish disunion. In consequence of such arguments in the press, meetings were held and many protests were prepared to send to the legislature.
The Charleston city election on September 2 proved another victory for the Nullification party by a safe margin. The Unionists, however, had explanations to offer for their defeat, and zealously endeavored to rally for the state election. This exciting state election, termed by many the most important in the history of the state to that date, proved to be another victory for the Nullifiers, though not by so large a majority as two years before. In Charleston their majority was reduced somewhat and the election was so close that there was an average of only 115 votes difference out of some 2,700 votes cast. It was so close that the Union men claimed that the corrupt practices of their opponents were all that gave them victory. The returns showed that there would be in the Senate 32 State Rights men and 13 Union men, and in the House 93 of the former and 31 of the latter. Thus the Nullifiers had a two-thirds majority in both houses and could adopt their oath as an amendment to the constitution. Their popular vote, however, was somewhat short of a two-thirds majority of the votes cast. The Union papers immediately pointed out this fact and urged that while so large a minority was opposed to measures which they believed would deprive them of "all the rights that a patriot held sacred," their oppressors should "take timely warning, lest an insulted and injured people follow that course which none but slaves would for a moment hesitate to pursue." They asserted that in spite of a provision in the constitution that two-thirds of both branches of the legislature of two successive legislatures could adopt amendments, the intent was to have two-thirds of the voters. The State Rights men ridiculed this claim. Suppose they said, that the result of the late election had
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Map X. — Popular vote for legislature, 1834
proved that two-thirds of the voters were in favor of the amendment, while more than one-third of the representatives elected were opposed to it, would the Union party have agreed that the amendment should be made? It would not do for the Union party to insist that either the voters or their representatives were to be regarded just as might happen to suit their own purposes; the amendment must be made as the constitution directed, by the legislature, and not according to popular vote.
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Map XI.— Legislature of 1834
The legislature met and all watched eagerly. The governor's message reviewed the situation and recommended the oath. As the debates progressed there was talk of a bill defining treason, with its pains and penalties, to enforce the oath when enacted. It seemed certain that the oath would be adopted and there were various suggestions for plans of action by Union supporters. One plan proposed a secession of the Union members from the legislature upon the passage of the oath, and a convention at Charleston to denounce the state government and prepare a military organization of the Union party to prevent any more elections to the state legislature until the oath should be repealed.
Finally, quite unexpectedly, the clouds were cleared away and the struggle was at an end with neither side positively victorious or vanquished. With the bill to amend the constitution by adding to it the oath of allegiance, was reported by the Committee on Federal Relations a construction of the amendment which the Union members thought would allow them to take the oath and in no way impair the obligations they felt toward the United States. Accordingly the bill was passed without opposition, and the treason bill and the plan for remodeling the judiciary were dropped. The Union members of the legislature prepared an address to the people, explaining their reasons for accepting the report of the Joint Committee on Federal Relations. With the bill to amend the constitution was introduced a bill to define treason, and notice was given of one to follow which would amend the judiciary system of the state. These measures led to the conviction that the majority would give the path of allegiance to the state a construction which the Union men believed was incompatible with the Constitution of the United States. When the amendment was passed, the Union men declared that they would enter on the journals their protest, but before that was necessary the Joint Committee on Federal Relations reported, in regard to the petitions filed against the oath, that "the allegiance required by the amendment is that allegiance which every citizen owes to the state consistently with the Constitution of the United States." This was adopted by large majorities in both houses.
The Union men at once regarded it as an offer of conciliation and a pledge that the acts defining treason and amending the judiciary would not be passed. They therefore withdrew their notice of protest and asked all their party to accept the settlement, since the interpretation given the oath did not impair their allegiance to the Constitution and laws of the United States. It was, they declared, under these circumstances and with these views that they had accepted the accommodation in the same spirit of kindness and with the same anxious desire to restore harmony to the distracted state with which they believed it had been tendered. They did not ask the majority to surrender any opinions which they conscientiously but privately held, nor on their part did they intend to surrender theirs. They considered this effort at conciliation an understanding between the two great political parties of the state that the new oath should receive that construction which was consistent with the Constitution of the United States. For themselves, they accepted it in the full confidence that it meant no more than that they would be faithful to the state in performing all her constitutional requisitions and would render her "true allegiance" to the full extent of all her reserved rights and sovereign powers, and that this was not inconsistent with the obligations they owed and the allegiance they bore to the United States, to the full extent of all the powers conferred by the federal Constitution. And they did not deem it inconsistent with the good faith with which they had accepted this accommodation and intended to maintain it, to declare that while they were swearing to be faithful to the state, they intended "to support the Constitution and laws of the United States made in pursuance thereof, as the supreme law of the land."
The Nullifiers of course claimed that the report of the committee though mild and temperate had really conceded nothing. They maintained that this report did not compromise a single principle of those for which their party had contended, but merely was not extreme in the assertion of them. The most influential leaders of the party were willing to adopt the report as submitted if it would give the Union men any satisfaction. Some, however, wanted the allegiance due to the state stated in stronger terms, and an amendment was offered to the effect that the state in her sovereign capacity had the exclusive right to determine what obligations the citizens of South Carolina owed the federal government. It failed, by a vote of 32 to 86, though the State Rights party would have accepted it at any other time; the majority saw no reason to antagonize the Union men further.
The compromise was hailed with satisfaction throughout the Union. The State Rights papers outside of South Carolina were reported to approve, and the opposition papers seemed to think it a great victory because the legislature declared the oath to require only such allegiance as every citizen owed to the state consistently with the Constitution of the United States. The State Rights men considered this strange, when not a word was changed in the oath and it had always required the person taking it to support the Constitution of the United States. As a matter of interpretation as to the extent of this support in case of conflict between the state and the federal governments, however, the Union men believed that before the assurance held out in the report the federal government would have been deserted for the state. In South Carolina the Columbia Times, a State Rights paper, and the Greenville Mountaineer, a Union press, were said to be the only ones of either party which expressed dissatisfaction. The former objected because the treason bill was dropped, and the latter because it claimed that if a close examination and literal interpretation were made, it would be found that the oath and explanation still demanded allegiance to the state and only obedience to the United States, which to the editor seemed to be giving paramount obligation to the state. He thought that the Union party had disgracefully yielded all. But even this one Union leader, after expressing his views, determined to speak of it no more.
On the day after the compromise was reached came the election of the governor of the state. George McDuffie received the unanimous vote of the Union party as well as of his own. Apparently concord was restored in South Carolina. The Union men would take the oath, but whether the bitterness of party feeling was to be much allayed was questionable. It would evidently be long before it was entirely extinguished.
The year 1835 opened with nearly every editor in the state doing his utmost to promote harmony. The watchword of all seemed to be to forgive and forget the past differences. It seemed that the "demon of civil war" had flown, "affrighted at the approach of the peaceful dove. The arrows were displaced and the graceful olive branch occupied their station." The warfare of years had been settled in a day and the terms of peace were ratified by a rejoicing people.
Some flurries of discordant winds appeared occasionally to fan the old flame, but these never proved of serious consequence. They arose when editors of either side felt called upon to deny stories they had heard or read of an impression being abroad somewhere that their party had made the greater concessions in the settlement. It was then pointed out anew that the settlement was a true compromise, resting on the basis of mutual concession, the Union party conceding the passage of the oath, and the Nullifiers conceding the freedom of every man to interpret it according to his own understanding of the obligations owed under the federal Constitution. In Greenville, the Union hotbed of the interior, there seemed to be more dissatisfaction with the adjustment than elsewhere. It seemed to be so formidable there that the Greenville district delegates in the legislature addressed their constituents on the recent accommodation. They said that they understood that there was much dissatisfaction in the district with the settlement and with their having voted for it. They requested the several beat companies to take a vote on the course they had pursued; if a majority were opposed, they would resign and make room for new representatives. But there were not enough in the district opposed to the reconciliation to cause any resignations; on the contrary, many strong supporters declared that the Greenville delegates had acted most honorably and patriotically by holding out against the amendment only until they saw further resistence would be folly.
On the occasion of the celebration of July 4 a number of toasts were reported from various places showing that a determination for ultimate disunion seemed still to be nursed by the authors. These the Union papers regretted and pointed to with scorn. The congressional campaign in the districts of Greenville and Pendleton, to fill the vacancy caused by the death of Warren R. Davis, displayed some signs of being waged on the old party basis, with claims to office resting upon opposition to or support of the oath in the past controversy. Though this policy of openly reviving the old contest proved unpopular, the candidates were supported as State Rights and Union party men. These lines were kept distinct in the voting, and the result of the election was hailed as a State Rights victory. Though the quarrel was not openly renewed, the two parties still quietly maintained their opinions and voted for men according to their known position thereon.
In August there was held a militia brigade encampment of officers at Pickensville. Before it opened there had been a rumor that a portion of the officers of Greenville, dissatisfied Union men, would not attend. This proved to be the case and a majority of the officers from that district were absent. The governor in his address was especially complimentary to those of the Union party who had turned out and performed their duty in obedience to the laws of the state. He asserted that their conduct was evidently to be attributed to patriotic motives and that he could never again regard them and himself as belonging to different parties. Preparations were made immediately, for a court-martial to try all who had refused to attend the encampment. At least four of these officers were found guilty of "wilful disobedience of orders" and "combination with other officers to defy and resist the laws of the state"; they were sentenced to be cashiered and disqualified from holding a commission in the militia of South Carolina for one year and to pay a fine, some $50 and others $60. Thus the signs of the late contest had not entirely passed. Not until a Union man was elected governor in 1840 was it admitted with virtual unanimity that the old party lines had disappeared.
- Messenger, November 14, 26, 1833; Mountaineer, November 23; Courier, November 23.
- Mercury, November 26, 28, 1833; Journal, January 25, 1834.
- Journal, December 31, 1833; Courier, December 10.
- Mercury, April 30, 1834.
- The preliminary vote in the House was 60 to 44, but the military act and the oath amendment were passed by 89 to 23 in the House, and 31 to 13 in the Senate (Courier, December 17, 1833; Messenger, July 30, 1834). See Map IX and p. 107, n. 3.
- Courier, January 23, 1834. This was the key to the compromise as finally effected in December of 1834.
- Mountaineer, January 4, 1834.
- Patriot, January 15, 1834; Courier, January 15; Journal, January 25.
- Courier, January 18, 1834.
- Patriot, February 19, April 5, 1834.
- Mountaineer, January 11, 18, 25. February 1, 15, 22, March 1, 1834; Patriot, January 17, 23, February 6, 21, March 1, 11; Journal, January 18, February 1, March 8.
- Mountaineer, February 8, March 15, 1834; Journal, March 8; Patriot, March 17.
- Mountaineer, February 22, March 9, 1834.
- Mountaineer, March 29, 1834.
- Mountaineer, March 29, 1834.
- Patriot, April 1, 1834. Poinsett Papers: Poinsett to the Georgetown meeting, April 18.
- Messenger, February 5, March 19, 1834; Mercury, February 18. The oaths required in Maryland, New Hampshire, Vermont, Massachusetts, Kentucky, New York, and Georgia were cited.
- Mercury, February 18, 24, March 31, April 24, 1834; Messenger, February 26, March 19. The Mercury made many efforts to discredit and ridicule the convention. On April 5 it said: "We learn that some pf the meetings which sent delegates to the Nation of Greenville were exceedingly select and private, and the secret well kept for a time, as it was entrusted to very few. At Anderson it is said that the meeting was over before the people knew it was to take place, and if we remember right, that it was necessarily unanimous, as besides the chairman and secretary there was a 'respectable' attendance of only one person. The chairman may have opened the meeting as the Dean did the service when his congregation consisted of his Clerk, with 'Dearly beloved Roger,' instead of 'Dearly beloved Brethren.'"
- Perry Collection, Vol. XIV, opinion of Judge J. S. Richardson in the case of McDonald v. McMeekin, Lancaster district, April, 1834.
- Mercury. March 26, 1834; Mountaineer, April 12.
- Patriot, April 29, May 1, 1834.
- Courier, June 4, 1834.
- Mercury, June 5, 1834.
- Hammond Papers: William C. Preston to Hammond, June 12, 1834; Calhoun Correspondence: Calhoun to Pickens, June 5.
- Hammond Papers: Angus Patterson to Hammond, June 2, 1834; Preston to Hammond, June 12.
- Mountaineer, June 14, 1834; Journal, June 14.
- Hammond Papers: Preston to Hammond, June 12, 1834.
- Mercury, June 9, 12, 1834; Messenger, June 18; Mountaineer, June 21.
- Patriot, June 10, 1834; Courier, June 11; Journal, June 14.
- Mercury, June 13, 1834.
- Hammond Papers: Hayne to Hammond, June 12, 1834.
- Mercury, June 30, July 1, 1834; Patriot, June 30.
- One of these Union arguments appeared in the Patriot, July 24, 1834: "The Mercury has been for some days past elaborating several essays into a tissue of abstract reasonings, to prove that practical is not ultimate sovereignty—in other words, that the government of a state is carried on by agents who merely exercise the power of the people. Why, this might be granted, and much more, without bringing the editor any nearer to his final inference, that the judges may not set aside the unconstitutional proceedings of a legislature or convention. Judge O'Neall does not deny the right of the people to oontiol their agents, whether legislative, executive, or judicial, but it must be a control exercised in legal form, and he distinguishes very properly between the power of the people, as exhibited in the final right of revolution, and their power as exercised under the constitutional limitations and restrictions which they themselves have imposed. "Now, conceding to the Mercury all that it contends for; granting that allegiance is something different from obedience (and not, as Judge Harper argues, merely the highest species of obedience); that allegiance is due to nothing but sovereignty; we ask, conceding all this, if the government of the United States is not an agency of the people of South Carolina, precisely as their state government is; if the Constitution of the United States is not their Constitution exactly as the state constitution is; if the oaths in that Constitution are not as binding on their agents, judicial, legislative, and executive, in the same degree and manner as the oaths in the state constitution? Well, none of this being disputed, we ask the Mercury at what time did the sovereignty of South Carolina annul the oath in the Constitution of the United States by which it bound all its agents to observe that fundamental law, anything in the laws and constitution of a state to the contrary notwithstanding. It being not disputed that that great law remains unabrogated and the oath referred to unrepealed by any act of the sovereignty of South Carolina, we demand if the proceedings of a convention are of higher authority to the judges than the proceedings of a legislature. The oath in the Constitution of the United States is still there. The people of South Carolina in 1787 bound their judicial servants, in common with their other servants, to observe that oath, as the condition of office. The people of South Carolina have not annulled that sanction, by any formal or informal act. Must their judges take it for granted when anything be done in convention of the people repugnant to the Constitution of the United States, that the declaration of the supremacy of that instrument over state laws and constitutions, and the oath in confirmation of it, are impliedly annulled? Until this be shown, all that is contended for may be safely granted without bringing the advocates of state sovereignty any nearer to the conclusion that, holding allegiance to that sovereignity, they may not set aside an ordinance of a convention equally with an act of the legislature. Judges O'Neall and Johnson are obeying the sovereignty of South Carolina expressly declared in 1787 and not as made out by constructive inference in 1834."
- Messenger, May 14, 1834.
- Mercury, May 21, 1834; Messenger, May 21, 28.
- Messenger, May 21, 28, June 25, 1834.
- Patriot, May 19, 22, 1834; Courier, May 23, 24.
- Hammond Papers: Preston to Hammond, June 12, 1834.
- Hammond Papers: James Jones to Hammond, April 14, 1834; Angus Patterson to Hammond, June 22.
- Mercury, June 23, July, 1834; Messenger, July 9, 16, 30, August 13
- Some Union men, however, still held that it would be against the United States Constitution and therefore null and void.
- Mercury, June 24, 1834.
- Mercury, August 11, 21, November 17, 1834; Messenger, August 13, 20.
- Mountaineer, August 9, 1834.
- Mountaineer, September 6, November 15, 1834; Journal, September, 13, 27; Courier, November 11; Mercury, November 17; Messenger, September 17.
- Mercury, August 28, 30, September 3, 6, 1834; Patriot, August 28, September 1, 3, 6; Courier, September 3; Messenger, September 10.
- Patriot, October 15, 1834; Courier, October 16; Mercury, October 16. The State Rights men declared that the malpractice of their opponents was all that accounted for their increase over the last election. A writer in the Courier, January 1, 1835, thus described the preceding fall elections: "That period arrived and the debasing struggle of bribery, corruption, and intrigue was conducted with a virulence that surpassed all that had been before enacted amongst us. The virtuous man forgot the precepts he had inculcated and practiced; honorable men laid aside for the time the badge that they valued dearer than life; the rich man opened his purse strings to feed the unprincipled villains who were willing to sell their birthright for a mess of pottage; the working-man abandoned his daily employment for the haunts of vice, with the view of obtaining from among the filthy horde some creature whom he might suborn to vote for the cause he advocated; all, all were engaged in the unholy work of breaking down the very pillars of virtue, upon which rests the fabric of our government."
- Mercury, October 30, 1834; Journal, November 8. The popular vote was roughly estimated at 15,000 Union and 2o,oop State Rights, by the Mountaineer, November 1, and the Journal, November 8; at from 17,000 to 18,000 Union and 21,000 to 22,000 State Rights, by the Patriot, October 25; and more closely at 17,446 Union and 22,901 State Rights, 18,242 Union and 22,742 State Rights, 20,601 Union and 23,085 State Rights, by the Patriot, November 6, 11, and 15, 1834. The returns were alleged by the Union men to show diminished majorities in the districts where the Nullifiers had been hitherto in the ascendancy, and increased vote of the Union party in those districts where they held the power (Journal, October 25). The State Rights men claimed that their party polled a smaller vote than two years previously because the excitement was not so great in their party since the compromise of the tariff question, and because the people were not likely to turn out well when the majority in their district was known to be large and there was therefore no spirited opposition (Messenger, November 5). In the state's delegation to Congress, the Union men gained one more member. They now had two of the nine; James Rogers, from the district composed of York, Chester, Spartanburg, and Union, and Richard I. Manning, from the district composed of Kershaw, Sumter, Lancaster, and Chesterfield (Journal, November 1).
- The Mercury, November 1, 1834, doubted the assertion that the State Rights party did not have two-thirds, and declared that they very nearly had that majority; the census showed 45,000 voters and the Mercury estimated the Union voters at 15,000. See Maps X and XI and p. 107, n. 3.
- Mountaineer, November 8, 1834; Mercury, November 8.
- For this action he was accordingly attacked and praised by the respective party presses (Courier, November 28, 1834; Mountaineer, November 29; Mercury, November 29).
- Patriot, December 6, 1834.
- Mercury, November 29, 1834.
- Mercury, December 11, 1834; Patriot, December 11.
- The vote was 36 to 4 in the Senate, and 90 to 28 in the House; see Messenger, December 24, 1834.
- Messenger, December 24, 1834; Courier, December 24.
- Hammond Papers: I. W. Hayne to Hammond, December 8, 1834. Messenger, December 17, 24, 1834; Niles' Register, December 27.
- Messenger, January 14, 1835.
- Mountaineer, December 13, 1834; Messenger, January 14, 1835.
- Messenger, December 17, 1834; Niles' Register, December 20.
- Courier, January 1, 1835; Mercury, January; Mountaineer, January, February, and March; Journal, January 31; Messenger, February 13.
- Courier, January 16, 1835; Journal, February 7.
- Messenger, February 13, 1835.
- Journal, July 18, 1835.
- Messenger, April 3, 17, May 1, September 11, 1835; Mountaineer, September 12; Courier, November 11.
- Messenger, August 21, November 20, 27, 1835. One of these officers, Major Henry Smith, of the Third Regiment, wrote a public explanation: "It is notoriously known that all the field and most of the company officers of the Third Regiment, who were elected on the 11th of April, 1834, were under positive instructions from the people to oppose certain provisions of what is commonly called the military bill; and I being of that class of officers, was of course bound by the plainest rules of republicanism to obey their instructions. The only question, therefore, for consideration, was whether I was or was not released from those obligations by the late compromise. In order to solve this question. Colonel McNeely, myself, and some other officers concluded to take the opinion of as many of the citizens as we could call together, which we did, and after some consultation it was decided that we were not released from the obligations under which we were elected. Therefore I could not attend the late encampment without proving recreant to those whom I have the honor to command, by openly violating their oft expressed will, as well as my own personal feelings."