furnished by Dr. R. L. Dabney. He says that while Virginia, through
her convention, sitting in April, 1861, was making a last effort
to save the Union, Seward sent a confidential messenger, Allen B.
McGruder, to Richmond, to urge that a representative be sent to
Washington in all haste. McGruder stated that he was authorized
by Seward to say that Fort Sumter would be evacuated on Friday of
the ensuing week and that the _Pawnee_ would sail on the following
Monday for Charleston to effect the evacuation. Colonel Baldwin,
an original Union man, was fixed upon as the best representative
of the peace sentiment. "He and McGruder," continues Dabney, "set
out on the night following and arrived in Washington early the next
morning. Immediately after breakfast they drove to Mr. Seward's,
when the latter took charge of Mr. Baldwin, and the two went
directly to the White House, where they arrived about nine o'clock.
They found Mr. Lincoln engaged, but, upon Mr. Seward's whispering
in his ear, he excused himself and conducted Mr. Seward and Colonel
Baldwin into a sleeping apartment and locked the door.
"After the usual formalities, Colonel Baldwin presented his
credentials. After Lincoln had read the credentials, Colonel Baldwin
proceeded to state to him what was the opinion of the great body
of Virginians, both in the convention and out of it. This opinion
was as follows, to wit: 'That although opposed to a Presidential
election upon a sectional free-soil platform, which they deplored
as most dangerous and unwise, Virginia did not approve of making
that, evil as it was, a _casus belli_, or a ground for disrupting
the Union. That much as Virginia disapproved of it, if Mr. Lincoln
would only adhere faithfully to the Constitution and the laws,
she would support him just as faithfully as though he was the man
of her choice, and would wield her whole moral force to keep the
border States in the Union, and to bring back the seven seceded
States; but that, while much difference of opinion existed on the
question whether the right of secession was a constitutional one,
all Virginians were unanimous in believing that no right existed in
the Federal Government to coerce a state by force of arms.' To this
Mr. Lincoln replied: 'You are too late, sir; _too late_!' Colonel
Baldwin understood this as a clear intimation that the policy of
coercion had just been determined upon, and, as he discovered,
"_within four days_." Impressed with the deep solemnity of the
occasion, Colonel Baldwin made a final appeal, asking, among other
things, that all questions at issue should be left for adjudication
by the constitutional tribunals. Lincoln asked a few questions, the
last of which was, "What will become of my tariff?" He put this
question with such force of emphasis as clearly indicated that this
consideration should decide the whole matter.
The peace ambassadors sent to Washington by the Virginia convention
immediately upon Baldwin's return found the same difficulty. "They
saw Mr. Lincoln. The tariff was still the burden of his complaint.
They left the next day; and the same train which carried them to
Virginia carried Lincoln's proclamation also for the seventy-five
thousand troops." See _North Carolina in the War Between the
States_, by Sloan, pp. 27, 28, 29, 30, quoting R. L. Dabney, in the
_Southern Historical Papers_.
There was a subtle influence at Washington strong enough to veer
Lincoln round from Seward, whose constituents dreaded war, to Thad.
Stevens, who represented in Congress the Pennsylvania iron interest,
and, in his character and person, the worst element of the worst
politics that America ever saw.
Lincoln had no warrant in the Constitution for calling out the
militia against the seceded States. "The Congress shall have power
to declare war" (Article I, section 8, clause 11); and "The Congress
shall have power to raise and support armies" (Article I, section 8,
clause 12); and if, in violation of standard definition and contrary
to the fact, it be said that what he inaugurated was not war, but
was only an armed effort to put down insurrection, the Constitution,
Article I, section 8, clause 15, replies: "The Congress shall have
power to provide for the calling out of the militia to execute the
laws of the Union, suppress insurrections and repel invasions." So
the only warrant the President had was an old act of Congress,
passed February 28, 1795, shortly after the Whiskey Insurrection.
This act provided: "That whenever the laws of the United States
shall be opposed in any State by combinations too powerful to be
suppressed by the ordinary course of judicial proceedings or the
power vested in the marshals by this act, it shall be lawful for
the President of the United States to call forth the militia of
such State or of any other State or States, as may be necessary to
suppress such combinations and cause the laws to be duly executed."
No pretense of authority was given when a State or a combination
of States opposed the United States. His construction forestalled
Congress and robbed it of its exclusive right and power to "declare
war," and made him the sole arbiter to dictate the nation's weal or
woe.
As a matter of fact, this law, thus misconstrued, was obsolete, and
so marked in the reprint of the United States Statutes at Large,
in 1845, authorized by Congress. Lincoln, then, "by and with the
advice and consent" of interested persons, utterly ignoring the
two coordinate branches of government, unearthed for the purpose
of inaugurating a most frightful war an old statute, unused from
the time of its passage, and standing on the authoritative Revised
Statutes marked "obsolete" for sixteen years--so received by the
lawyers, and unchallenged by Congress or any member thereof.
It is no wonder that Congress, when it did assemble, in July, 1861,
and found war a fact accomplished and armies already threatening
Washington, should have made haste to validate the President's
high-handed measures and strengthen his precarious position by
an act of which section three is as follows: "That all the acts,
proclamations, and orders, of the President of the United States,
after the 4th of March, 1861, respecting the army and navy of the
United States, and the calling out, or relating to the militia or
volunteers from the States, are hereby approved and in all respects
legalized and made valid to the same intent and with the same
effect as if they had been issued and done under previous express
authority and direction of the Congress of the United States." The
marginal note of the printed laws points this act specially to the
proclamation of April 15, 1861, calling out the militia.
In suppressing the Whiskey Insurrection Washington acted under
the "previous express authority of Congress," then lately given,
"cautiously in his delicate duty," while Hamilton "was pressing for
the collection of the revenue," says history. The act under which
the militia was then called out, passed in 1792, required a Federal
judge to certify the fact of the insurrection, and Washington
took care to arm himself with the certificate of a Supreme Court
Justice. The act under which _Lincoln_ proceeded, an epitome of the
former, shows on its face that it was also, when in force, in aid
exclusively of court proceedings, and operative only when a Federal
judge should call upon the President to assist the United States
Marshals, who were purely court officers. Any other construction
gives the President "the power to suppress insurrections," and the
"power to declare war"; and, when war is declared the Constitution
places him in command of the army and militia: so nothing would be
left for Congress but to vote supplies and validate his acts, as it
did Lincoln's usurpations!
Though the militia had often been needed, and sometimes called out
for troubles, domestic and foreign, no President of the United
States, until Lincoln, had ever issued such a call unless expressly
authorized by Congress, in special acts of limited duration, which
have usually specified the number of troops wanted and the term
of service required. It is no wonder then that an act, treated as
a dead letter since the suppression of the Whiskey Insurrection,
should have been marked "obsolete" by the government publisher, with
the sanction of Congress.
Unless Madison's refusal to recommend a policy of coercion against
the New England States, successfully resisting the drafts for
the defense of the nation in the War of 1812, be regarded as a
precedent, Lincoln had but one, directly in point, and that was
furnished by President Jackson in the case of South Carolina's
nullification of Federal law in 1832. Jackson's zeal for the Union
could not be doubted; and, in spite of his military training and
arbitrary temper, he found a remedy which saved the Union without
bloodshed.
On December 10, 1832, after South Carolina had nullified the tariff
act, proceeded to provide a separate government, notified the
President, and begun to arm and organize its militia for defense,
Jackson issued a proclamation in which he besought, and threatened,
and promised. Failing by such means to induce the tariff-plundered
planters of the plucky little State to recede from their position,
on the assembling of Congress he recommended the removal of the
cause of the trouble, expressing his belief that such action would
shortly put an end to resistance. Nullification still continuing,
Jackson (a month later) wrote his famous message, in which he called
attention to the magnitude of the opposition, and recommended to
Congress to provide by law: "That in case of an attempt otherwise
[than by process from the ordinary judicial tribunals of the
United States] to take property [from the custody of the law] by
a force too great to be overcome by the officers of the customs,
it should be lawful to protect the possessions 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 January 9, 1809." After recommending the revival of
other expired acts to facilitate and protect the collection of the
revenues and execution of Federal law, he said further: "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 [then]
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 that 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 Act 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, whatever,
too great to be otherwise overcome."
Pursuant to these recommendations, Congress passed, March 2, 1833,
the "force bill," or "bloody bill," as it was called; and the
section which made it infamous in the unprotected States was as
follows: "Sec. 5. And be it further enacted, that whenever the
President of the United States shall be officially informed by the
authorities of any State, or by a judge of any Circuit or District
Court of the United States in the State, that within the limits of
such State any law or laws of the United States, or the execution
thereof, or of any process from the courts of the United States is
obstructed by the employment of military force, or by any other
unlawful means too great to be overcome by the ordinary course
of judicial proceedings or by the power vested in the marshals
by existing laws, it shall be lawful for him, the President of
the United States, forthwith to issue his proclamation declaring
such fact or information, and requiring all such military or other
force forthwith to disperse; and if, at any time after issuing such
proclamation, any such opposition or obstruction shall be made in
the manner or by the means aforesaid, the President shall be and
hereby is authorized promptly to employ such means to suppress the
same, and to cause said laws or process to be duly executed, as are
authorized and provided in the cases therein mentioned by the Act
of the 28th of February, 1795, entitled: 'An act to provide for
calling forth the militia to execute the laws of the Union, suppress
insurrections, repel invasions, and repeal the act now in force
for that purpose'; and also, by the Act of the 3d of March, 1807,
entitled: 'An act authorizing the employment of the land and naval
forces of the United States in cases of insurrection.'" Section 1 of
the force bill authorized the President to call out the army, navy,
and militia to aid in collecting the _customs_--a power which the
Act of 1795 could not be construed to give. It was also provided in
the act that the operation of said sections 5 and 1 should "continue
until the next session of Congress, and no longer." Thus careful was
Congress to limit the duration of the great powers delegated to the
President, as it had usually done in other instances in which it
had authorized the employment of military force. The Act of March
3, 1807, referred to in the force bill, simply gave the President
authority to use the land and naval forces of the United States to
assist in the execution of the laws whenever it should be lawful for
him to call out the militia for the same purpose. The Act of 1795,
referred to by Jackson, which he did not pretend he had a right
to use against the nullifiers of the tariff act, unless it should
be revived by Congress, and which he proposed should be revived,
modified, and adapted to meet the emergency confronting him, in
the same way Congress had formerly adapted and modified the Act of
1792 by the Act of 1795, to meet the emergency of the latter year,
was the very act Lincoln used to cover his assumption of power to
make war on the South without the authority of Congress! He had
this precedent before him, in which the warrior Jackson, swift in
defense of the nation's honor against her foreign foes, was slow
to dye his hands in his brothers' blood. He had before him the act
in which Congress had revived the provisions of the Act of 1795,
and expressly limited the duration of that revival to the time
intervening before its next session; and he was lawyer enough to
know, though not learned in his profession, that the substantial
reenactment and enlargement of the old act, and its repeal, or
limitation to a definite period, was, after the expiration of that
period, a practical repeal of both--especially when it may be seen
that the one was to take the place the other took in its day. See
_Tynen_ vs. _The United States_, 11 Wallace U. S. Reports, page 88;
_Pana_ vs. _Bowles_, 107 U. S. Reports, page 529, and cases cited
therein; _Norris_ vs. _Crocker_, 13 Howard, page 429.
Jackson, in spite of his camp association and military methods, was
the embodiment of caution and conservatism, when compared to Lincoln
and his "kitchen cabinet" of revenue-hunting Governors, who were
as swift to declare war against their own people, under a forced
construction of an old, unused, obsolete, special act, as those who
now speculate in their names and fame are eager to seek treaties of
partnership with our hereditary foreign foe.
They shall never, unchallenged, teach our children that Abraham
Lincoln's usurpations were lawful, justified by necessity, or
commended by God; lest "necessity, the plea of tyrants," or "divine
right," the plea of kings and priests, or "implied powers," the
plea of those who are powerful only to oppress the people and to
collect and spend their revenues, should constitute the excuse for
destroying the remaining safeguards of our liberties.
Those accustomed to analyze motive and conduct will note with
attention that the Act of August 6, 1861, intended to legalize
the call for troops, was passed after the "force bill" had been
reenacted and amplified by the Acts of July 13, 29, and 31,
1861--after the President had been expressly authorized by these
acts and another to accept the service of volunteers and to use the
army, navy, and militia to make war upon _States and combinations of
States_, as well as upon the inhabitants of districts therein--after
Congress had in these acts twice gone out of its way to refer to the
old Act of 1795 as still in force, and once expressly treated it
as giving the authority, which had been assumed, to begin the war;
and the legalizing act itself was covered under a caption which was
calculated to excite as little attention as possible. The caption
reads: "An act to increase the pay of privates in the regular army
and in the volunteers, and for other purposes."
The Act of 1795, when in force, gave the President no authority to
determine when a state of insurrection existed, even in a Federal
district; Congress proved that it realized this defect of power by
hastening (July 13 and 29, 1861) to supply it to Lincoln--in respect
to States as well as districts--a double confession of the weakness
of his position.
The Act of 1795 afforded no assistance to collect customs, for the
Whiskey Insurrectionists, against whom it was passed, resisted
only the internal revenue taxes; Congress practically acknowledged
this limitation, by Act of July 13, 1861, expressly and separately
authorizing the President to use the army, navy, and militia to
"collect the customs" of the United States.
"Even our enemies themselves being judges," there were doubts
everywhere, and these doubts were everywhere resolved in favor of
absolute authority and against the received construction of law and
the Constitution.
An executive who usurps powers ought to be placed on a moral plane
as much lower than that of a treasurer who embezzles public funds as
the love of liberty in the minds of the virtuous is higher than the
love of money.
Those who would derive Lincoln's assumed power to declare war from
the clause of the Constitution which requires that the "President
shall see that the laws are faithfully executed" betray the flimsy
foundation upon which they would erect the throne of an autocrat.
The faithful execution of the laws is to be secured in a lawful
manner, under such powers as the Constitution gives or Congress
may lawfully give to the President. If he is the sole judge of the
extent of the powers conferred and the appropriateness of the means
of execution, he does not need any other clause to make him the
field-overseer of both the other departments of government; and
this the Supreme Court has decided he is not. _Tyndall_ vs. _The
United States_, 12 Peters, p. 524. Lincoln did not rely upon this
clause, but upon the Act of 1795, the language of which he quoted in
his call for the militia of the States; and Congress, by the fifth
section of the Act of July 13, 1861, showed very plainly that it
recognized that he had professed to act under the Statute of 1795.
The frightful experiences of the civil war and the serpent-brood of
evils which have since followed in its trail are plenary proof that
the fathers were wise in not lodging the war power in the hands of
any one man.
A summary of Lincoln's conduct, while there was yet peace in the
land, brings out in startling relief the facts: that he dared at the
behest of pampered privilege greedy for revenue, and partisan rancor
thirsting for blood, without precedent, or the support of either
of the other branches of the government, to place his own private
interpretation upon a statute, in effect repealed, and thereby to
make war on six millions of his fellow-citizens, whom he refused
a right of opinion sustained by abundant authority and precedent
and by some of his own acts and utterances. The idol of the "higher
law" fanatics, the chief of whom he placed in his cabinet--nominated
on a platform which denounced the Supreme Court decision in the
Dred Scott case as "a dangerous political heresy, revolutionary
in its tendency and subversive of the peace and harmony of the
country"--elected by States, many of which defied Federal authority
attempting to execute the fugitive slave law, and none of which
supported such authority, except New Jersey and California--and
having never publicly or privately condemned the nullification of
their constitutional obligations (Article IV, section 2, clause 3)
by the States of Vermont, Connecticut, Rhode Island, Massachusetts,
Michigan, Maine, Wisconsin, Kansas, Ohio, and Pennsylvania--he still
proclaimed that his only motive in taking up the sword was to assert
the paramount authority of Federal law!
His political campaign of 1864 was fought upon a platform which
pledged its supporters to "bring to punishment due their crimes
the rebels and traitors arrayed against the Government"; and be
it remembered by all posterity that at the end of that campaign,
almost at the close of a successful war, and in spite of military
interference at the polls, one million eight hundred and eight
thousand seven hundred and twenty-five citizens of his own section
voted to condemn him, and endorsed a platform which declared that
"under pretense of a military necessity for a war power higher than
the Constitution, the Constitution itself has been disregarded
in every part" by him, and that "justice, humanity, liberty, and
the public welfare demand that immediate efforts be made for a
cessation of hostilities, with a view to an ultimate convention of
all the States; * * * that peace may be restored on the basis of
the Federal Union of all the States," * * * that the aim of their
party was "to preserve the Federal Union and the rights of all the
States unimpaired," and that they considered "the administrative
usurpations of extraordinary and dangerous powers not granted by
the Constitution * * * as calculated to prevent a restoration of
the Union; that the shameful disregard of the administration of its
duty to our fellow-citizens, * * * prisoners of war, deserves the
severest reprobation."
As at the beginning, so at the end of the war, a vast majority of
our nation was opposed to Lincoln's policy of coercion and blood;
for his total vote, with the army and navy to back him, was only
about four hundred thousand in excess of McClellan's, and this would
have been far more than offset by the Southern vote.
The immediate cause of Lincoln's death was a sentence in his
speech of April 11, 1865: "If universal amnesty is granted
to the insurgents I cannot see how I can avoid exacting, in
return, universal suffrage, or, at least, suffrage on a basis of
intelligence and military service." "That means nigger citizenship,"
said his slayer to a witness. "Now, by God, I'll put him
through!"--_Life of Lincoln_, by Herndon and Weik, Vol. III, p. 579.
It was a singular decree of Providence that, according to his own
forebodings, Lincoln should have perished by the hand of violence,
and that too on the fatal 15th of April, the anniversary of his
proclamation for the seventy-five thousand volunteers to begin the
dance of death. "He that killeth with the sword must be killed with
the sword."
Let us be as thankful as we can that we are still one nation, that
African slavery has ceased, and that the safeguards of liberty may
be still sufficient if we are vigilant, unselfish, and brave.
The world has long respected the courage of the South; when the
whole truth shall be well told it will equally respect her cause.
One obvious effect of the civil war, clearly foreseen and foretold
by Southern statesmen, was to Europeanize American institutions.
This was a fearful price to pay even for keeping the sections under
one government.
Let us hope that the present war with Spain may destroy the
stock-in-trade of the speculator in past patriotism.
* * * * *