is another and graver question, it is in relation to the prohibition by
Congress of the introduction of slave property into the Territories.
What power does Congress possess in this connection? Has it the right to
say what shall be property anywhere? If it has, from what clause of the
Constitution does it derive that power? Have other States the power to
prescribe the condition upon which a citizen of another State shall
enter upon and enjoy territory--common property of all? Clearly not.
Shall the inhabitants who first go into the Territory deprive any
citizen of the United States of those rights which belong to him as an
equal owner of the soil? Certainly not. Sovereign jurisdiction can only
pass to these inhabitants when the States, the owners of that Territory
shall recognize their right to become an equal member of the Union.
Until then, the Constitution and the laws of the Union must be the rule
governing within the limits of a Territory.
The Constitution recognizes all property, and gives equal privileges to
every citizen of the States; and it would be a violation of its
fundamental principles to attempt any discrimination.
There is nothing of truth or justice with which to sustain this
agitation, or ground for it, unless it be that it is a very good bridge
over which to pass into office; a little stock of trade in politics
built up to aid men who are missionaries staying at home; reformers of
things which they do not go to learn; preachers without a congregation;
overseers without laborers and without wages; war-horses who snuff the
battle afar off and cry: "Aha! aha! I am afar off."
Thus it is that the peace of the Union is disturbed; thus it is that
brother is arrayed against brother; thus it is that the people come to
consider not how they can promote each other's interests, but how they
may successfully war upon them. And among the things most odious to my
mind is to find a man who enters upon a public office, under the
sanction of the Constitution, and taking an oath to support the
Constitution--the compact between the States binding each for the common
defense and general welfare of the other--and retaining to himself a
mental reservation that he will war upon the institutions and the
property of any of the States of the Union. It is a crime too low to
characterize as it deserves before this assembly. It is one which would
disgrace a gentleman--one which a man with self-respect would never
commit. To swear that he will support the Constitution, to take an
office which belongs in many of its relations to all the States, and to
use it as a means of injuring a portion of the States of whom he is thus
an agent, is treason to everything that is honorable in man. It is the
base and cowardly attack of him who gains the confidence of another in
order that he may wound him. But I have often heard it argued, and I
have seen it published: I have seen a petition that was circulated for
signers, announcing that there was an incompatibility between the
different sections of the Union; that it had been tried long enough, and
that they must get rid of those sections in which the curse of slavery
existed. Ah! those sages, so much wiser than our fathers, have found out
that there is incompatibility in that which existed when the Union was
formed. They have found an incompatibility inconsistent with union, in
that which existed when South Carolina sent her rice to Boston, and
Maryland and Pennsylvania and New York brought in their funds for her
relief. The fact is that, from that day to this, the difference between
the people of the colonies has been steadily diminishing, and the
possible advantages of union in no small degree augmented. The variety
of product of soil and of climate has been multiplied, both by the
expansion of our country and by the introduction of new tropical
products not cultivated at that time; so that every motive to union
which your fathers had, in a diversity which should give prosperity to
the country, exists in a higher degree to-day than when this Union was
formed, and this diversity is fundamental to the prosperity of the
people of the several sections of the country.
It is, however, to-day, in sentiment and interest, less than on the day
when the Declaration of Independence was made. Diversity there
is--diversity of character--but it is not of that extreme kind which
proves incompatibility; for your Massachusetts man, when he comes into
Mississippi, adopts our opinions and our institutions, and frequently
becomes the most extreme man among us. As our country has extended, as
new products have been introduced into it, this Union and the free trade
that belongs to it have been of increasing value. And I say, moreover,
that it is not an unfortunate circumstance that this diversity of
pursuit and character still remains. Originally it sprang in no small
degree from natural causes. Massachusetts became a manufacturing and
commercial State because of her fine harbors--because of her
water-power, making its last leap into the sea, so that the ship of
commerce brought the staple to the manufacturing power. This made you a
commercial and a manufacturing people. In the Southern States great
plains interpose between the last leaps of the streams and the sea.
Those plains were cultivated in staple crops, and the sea brought their
products to your streams to be manufactured. This was the first
beginning of the differences.
Then your longer and more severe winters, your soil not so favorable for
agriculture, in a degree kept you a manufacturing and a commercial
people. Even after the cause had passed away--after railroads had been
built--after the steam-engine had become a motive power for a large part
of manufacturing machinery, the natural causes from which your people
obtained a manufacturing ascendancy and ours became chiefly
agriculturists continued to act in a considerable measure to preserve
that relation. Your interest is to remain a manufacturing, and ours to
remain an agricultural people. Your prosperity, then, is to receive our
staple and to manufacture it, and ours to sell it to you and buy the
manufactured goods. This is an interweaving of interests which makes us
all the richer and happier.
But this accursed agitation, this intermeddling with the affairs of
other people, is that alone which will promote a desire in the mind of
any one to separate these great and glorious States. The seeds of
dissension may be sown by invidious reflections. Men may be goaded by
the constant attempts to infringe upon rights and to disturb
tranquillity, and in the resentment which follows it is not possible to
tell how far the wave may rush. I therefore plead to you now to arrest a
fanaticism which has been evil in the beginning and must be evil in the
end. You may not have the numerical power requisite; and those at a
distance may not understand how many of you there are desirous to put a
stop to the course of this agitation. For me, I have learned since I
have been in New England the vast mass of true State-rights Democrats to
be found within its limits--though not represented in the halls of
Congress. And if it comes to the worst--if, availing themselves of a
majority in the two Houses of Congress, they should attempt to trample
upon the Constitution; if they should attempt to violate the rights of
the States; if they should attempt to infringe upon our equality in the
Union--I believe that even in Massachusetts, though it has not had a
representative in Congress for many a day, the State-rights Democracy,
in whose breasts beats the spirit of the Revolution, can and will whip
the black Republicans. I trust we shall never be thus purified, as it
were, by fire; but that the peaceful, progressive revolution of the
ballot-box will answer all the glorious purposes of the Constitution and
the Union. And I marked that the distinguished orator and statesman who
preceded me, in addressing you, used the words "national" and
"constitutional" in such relation to each other as to show that in his
mind the one was a synonym of the other. I say so: we became national by
the Constitution, the bond for uniting the States, and national and
constitutional are convertible terms.
Your candidate for the high office of Governor--whom I have been once or
twice on the point of calling Governor, and whom I hope I may be able
soon to call so--in his remarks to you has presented the same idea in
another form. And well may Massachusetts orators, without even
perceiving what they are saying, utter sentiments which lie at the
foundation of your colonial as well as your subsequent political
history, which existed in Massachusetts before the Revolution, and have
existed ever since, whenever the true spirit which comes down from the
Revolutionary sires has swelled and found utterance within her limits.
It has been not only, my friends, in this increasing and mutual
dependence of interest that we have found new ties to you. Those bonds
are both material and mental. Every improvement or invention, every
construction of a railroad, has formed a new reason for our being one.
Every new achievement, whether it has been in arts or science, in war or
in manufactures, has constituted for us a new bond and a new sentiment
holding us together.
Why, then, I would ask, do we see these lengthened shadows which follow
in the course of our political history? Is it because our sun is
declining to the horizon? Are they the shadows of evening, or are they,
as I hopefully believe, but the mists which are exhaled by the sun as it
rises, but which are to be dispersed by its meridian glory? Are they but
the little evanishing clouds that flit between the people and the great
objects for which the Constitution was established? I hopefully look
toward the reaction which will establish the fact that our sun is still
in the ascendant--that that cloud which has so long covered our
political horizon is to be dispersed--that we are not again to be
divided on parallels of latitude and about the domestic institutions of
States--a sectional attack on the prosperity and tranquillity of a
nation--but only by differences in opinion upon measures of expediency,
upon questions of relative interest, by discussions as to the powers of
the States and the rights of the States, and the powers of the Federal
Government--such discussion as is commemorated in this picture of your
own great and glorious Webster, when he specially addressed our best,
most tried, and greatest man, the pure and incorruptible Calhoun,
represented as intently listening to catch the accents of eloquence that
fell from his lips. Those giants strove each for his conviction, not
against a section--not against each other; they stood to each other in
the relation of personal affection and esteem, and never did I see Mr.
Webster so agitated, never did I hear his voice falter, as when he
delivered the eulogy on John C. Calhoun.
But allusion was made to my own connection with your great and favorite
departed statesman. Of that I will only say, on this occasion, that very
early in my Congressional life Mr. Webster was arraigned for an offense
which affected him most deeply. He was no accountant, and all knew that.
He was arraigned on a pecuniary charge--the misapplication of what is
known as the secret-service fund--and I was one of the committee that
had to investigate the charge. I endeavored to do justice. I endeavored
to examine the evidence with a view to ascertain the truth. It is true I
remembered that he was an eminent American statesman. It is true that as
an American I hoped he would come out without a stain upon his garments.
But I entered upon the investigation to find the truth and to do
justice. The result was, he was acquitted of every charge that was made
against him, and it was equally my pride and my pleasure to vindicate
him in every form which lay within my power. No one that knew Daniel
Webster could have believed that he would ever ask whether a charge was
made against a Massachusetts man or a Mississippian. No! It belonged to
a lower, to a later, and I trust a shorter-lived race of statesmen, who
measure all facts by considerations of latitude and longitude.
I honor that sentiment which makes us oftentimes too confident, and to
despise too much the danger of that agitation which disturbs the peace
of the country. I respect that feeling which regards the Union as too
strong to be broken. But, at the same time, in sober judgment, it will
not do to treat too lightly the danger which has existed and still
exists. I have heard our Constitution and Union compared to the granite
shores which face the sea, and, dashing back the foam of the waves,
stand unmoved by their fury. Now I accept the simile: and I have stood
upon the shore, and I have seen the waves of the sea dash upon the
granite of your own shores which frowns over the ocean, have seen the
spray thrown back from the cliffs. But, when the tide had ebbed, I saw
that the rock was seamed and worn; and, when the tide was low, the
pieces that had been riven from the granite rock were lying at its base.
And thus the waves of sectional agitation are dashing themselves against
the granite patriotism of the land. But even that must show the seams
and scars of the conflict. Sectional hostility will follow. The danger
lies at your door, and it is time to arrest it. Too long have we allowed
this influence to progress. It is time that men should go back to the
first foundation of our institutions. They should drink the waters of
the fountain at the source of our colonial and early history.
You, men of Boston, go to the street where the massacre occurred in
1770. There you should learn how your fathers strove for community
rights. And near the same spot you should learn how proudly the
delegation of democracy came to demand the removal of the troops from
Boston, and how the venerable Samuel Adams stood asserting the rights of
democracy, dauntless as Hampden, clear and eloquent as Sidney; and how
they drove out the myrmidons who had trampled on the rights of the
people.
All over our country, these monuments, instructive to the present
generation, of what our fathers did, are to be found. In the library of
your association for the collection of your early history, I found a
letter descriptive of the reading of the church service to his army by
General Washington, during one of those winters when the army was
ill-clad and without shoes, when he built a little log-cabin for a
meeting-house, and there, reading the service to them his sight failed
him, he put on his glasses and, with emotion which manifested the
reality of his feelings, said, "I have grown gray in serving my country,
and now I am growing blind."
By the aid of your records you may call before you the day when the
delegation of the army of the democracy of Boston demanded compliance
with its requirements for the removal of the troops. A painfully
thrilling case will be found in the heroic conduct of your fathers'
friends, the patriots in Charleston, South Carolina. The prisoners were
put upon the hulks, where the small-pox existed, and where they were
brought on shore to stay the progress of the infection, and were
offered, if they would enlist in his Majesty's service, release from all
their sufferings, present and prospective; while, if they would not, the
rations would be taken from their families, and they would be sent back
to the hulks and again exposed to the infection. Emaciated as they were,
with the prospect of being returned to confinement, and their families
turned out into the streets, the spirit of independence, the devotion to
liberty, was so supreme in their breasts, that they gave one loud huzza
for General Washington, and went to meet death in their loathsome
prison. From these glorious recollections, from the emotions which they
create, when the sacrifices of those who gave you the heritage of
liberty are read in your early history, the eye is directed to our
present condition. Mark the prosperity, the growth, the honorable career
of your country under the voluntary union of independent States. I do
not envy the heart of that American whose pulse does not beat quicker,
and who does not feel within him a high exultation and pride, in the
past glory and future prospects of his country. With these prospects are
associated--if we are only wise, true, and faithful, if we shun
sectional dissension--all that man can conceive of the progression of
the American people. And the only danger which threatens those high
prospects is that miserable spirit which, disregarding the obligations
of honor, makes war upon the Constitution; which induces men to assume
powers they do not possess, trampling as well upon the great principles
which lie at the foundation of the Declaration of Independence, and the
Constitution of the Union, as upon the honorable obligations which were
fixed upon them by their fathers. They with internecine strife would
sacrifice themselves and their brethren to a spirit which is a disgrace
to our common country. With these views, it will not be surprising, to
those who most differ from me, that I feel an ardent desire for the
success of this State-rights Democracy; that, convinced as I am of the
ill consequences of the described heresies unless they be corrected; of
the evils upon which they would precipitate the country unless they are
restrained--I say, none need be surprised if, prompted by such
aspirations, and impressed by such forebodings as now open themselves
before me, I have spoken freely, yielding to motives I would suppress
and can not avoid. I have often, elsewhere than in the State of which I
am a citizen, spoken in favor of that party which alone is national, in
which alone lies the hope of preserving the Constitution and the
perpetuation of the Government and of the blessings which it was
ordained and established to secure.
My friends, my brethren, my countrymen, I thank you for the patient
attention you have given me. It is the first time it has ever befallen
me to address an audience here. It will probably be the last. Residing
in a remote section of the country, with private as well as public
duties to occupy the whole of my time, it would only be for a very
hurried visit, or under some such necessity for a restoration to health
as brought me here this season, that I could ever expect to remain long
among you, or in any other portion of the Union than the State of which
I am a citizen.
I have staid long enough to feel that generous hospitality which evinces
itself to-night, which has evinced itself in Boston since I have been
here, and showed itself in every town and village of New England where I
have gone. I have staid here, too, long enough to learn that, though not
represented in Congress, there is a large mass of as true Democrats as
are to be found in any portion of the Union within the limits of New
England. Their purposes, their construction of the Constitution, their
hopes for the future, their respect for the past, is the same as that
which exists among my beloved brethren in Mississippi....
In the hour of apprehension I shall turn back to my observations here,
in this consecrated hall, where men so early devoted themselves to
liberty and community independence; and I shall endeavor to impress upon
others, who know you only as you are represented in the two Houses of
Congress, how true and how many are the hearts that beat for
constitutional liberty, and faithfully respect every clause and
guarantee which the Constitution contains for any and every portion of
the Union.
APPENDIX F.
Speech of Mr. Davis, of Mississippi, in the Senate of the United States,
on the resolutions offered by him relative to the relations of the
States, the Federal Government, and the Territories, May 7, 1860.
Mr. President: Among the many blessings for which we are indebted to our
ancestry is that of transmitting to us a written Constitution; a fixed
standard to which, in the progress of events, every case may be
referred, and by which it may be measured. But for this, the wise men
who formed our Government dared not have hoped for its perpetuity; for
they saw, floating down the tide of time, wreck after wreck, marking the
short life of every republic which had preceded them. With this,
however, to check, to restrain, and to direct their posterity, they
might reasonably hope the Government they founded should last for ever;
that it should secure the great purposes for which it was ordained and
established; that it would be the shield of their posterity equally in
every part of the country, and equally in all time to come. It was this
which mainly distinguished the formation of our Government from those
confederacies or republics which had preceded it; and this is the best
foundation for our hope to-day. The resolutions which have been read,
and which I had the honor to present to the Senate, are little more than
the announcement of what I hold to be the clearly-expressed declarations
of the Constitution itself. To that fixed standard it is sought, at this
time, when we are drifting far from the initial point, and when clouds
and darkness hover over us, to bring back the Government, and to test
our condition to-day by the rules which our fathers laid down for us in
the beginning.
The differences which exist between different portions of the country,
the rivalries and the jealousies of to-day, though differing in degree,
are exactly of the nature of those which preceded the formation of the
Constitution. Our fathers were aware of the different interests of the
navigating and planting States, as they were then regarded. They sought
to compose those difficulties, and, by compensating advantages given by
one to the other, to form a Government equal and just in its operation,
and which, like the gentle showers of heaven, should fall twice blessed,
blessing him that gives and him that receives. This beneficial action
and reaction between the different interests of the country constituted
the bond of union and the motive of its formation. They constitute it
to-day, if we are sufficiently wise to appreciate our interests, and
sufficiently faithful to observe our trust. Indeed, with the extension
of territory, with the multiplication of interests, with the varieties,
increasing from time to time, of the products of this great country, the
bonds which bind the Union together should have increased. Rationally
considered, they have increased, because the free trade which was
established in the beginning has now become more valuable to the people
of the United States than their trade with all the rest of the world.
I do not propose to argue questions of natural rights and inherent
powers. I plant my reliance upon the Constitution; that Constitution
which you have all sworn to support; that Constitution which you have
solemnly pledged yourself to maintain while you hold the seat you now
occupy in the Senate; to which you are bound in its spirit and in its
letter, not grudgingly, but willingly, to render your obedience and
support as long as you hold office under the Federal Government.
When the tempter entered the garden of Eden and induced our common
mother to offend against the law which God had given to her through
Adam, he was the first teacher of that "higher law" which sets the will
of the individual above the solemn rule which he is bound, as a part of
every community, to observe. From the effect of the introduction of that
higher law in the garden of Eden, and the fall consequent upon it, came
sin into the world; and from sin came death and banishment and
subjugation, as the punishment of sin; the loss of life, unfettered
liberty, and perfect happiness followed from that first great law which
was given by God to fallen man.
Why, then, shall we talk about natural rights? Who is to define them?
Where is the judge who is to sit over the court to try natural rights?
What is the era at which you will fix the date by which you will
determine the breadth, the length, and the depth of those called the
rights of nature? Shall it be after the fall, when the earth was covered
with thorns, and man had to earn his bread in the sweat of his brow? Or
shall it be when there was equality between the sexes, when he lived in
the garden, when all his wants were supplied, and when thorns and
thistles were unknown on the face of the earth? Shall it be then? Shall
it be after the flood, when, for the first sin committed after the
waters retired from the face of the earth, the doom of slavery was fixed
upon the mongrel descendants of Ham? If after the flood, and after that
decree, how idle is all this prating about natural rights as standing
above the obligations of civil government! The Constitution is the law
supreme to every American. It is the plighted faith of our fathers; it
is the hope of our posterity. I say, then, I come not to argue questions
outside of or above the Constitution, but to plead the cause of right,
of law and order, under the Constitution and to plead it to those who
have sworn to abide by that obligation.
One of the fruitful sources, as I hold it, of the errors which prevail
in our country, is the theory that this is a Government of one people;
that the Government of the United States was formed by a mass. The
Government of the United States is a compact between the sovereign
members who formed it; and, if there be one feature common to all the
colonies planted upon the shores of America, it is desire for community
independence. It was for this the Puritan, the Huguenot, the Catholic,
the Quaker, the Protestant, left the land of their nativity, and, guided
by the shadows thrown by the fires of European persecution, they sought
and found the American refuge of civil and religious freedom. While they
existed as separate and distinct colonies they were not forbearing
toward each other. They oppressed opposite religions. They did not come
here with the enlarged idea of no established religion. The Puritans
drove out the Quakers; the Church-of-England men drove out the
Catholics. Persecution reigned through the colonies, except, perhaps,
that of the Catholic colony of Maryland; but the rule was--persecution.
Therefore, I say the common idea, and the only common idea, was
community independence--the right of each independent people to do as
they pleased in their domestic affairs.
The Declaration of Independence was made by the colonies, each for
itself. The recognition of their independence was not for the colonies
united, but for each of the colonies which had maintained its
independence; and so, when the Constitution was formed, the delegates
were not elected by the people _en masse_, but they came from each one
of the States; and when the Constitution was formed it was referred, not
to the people _en masse_, but to the States severally, and severally by
them ratified and approved. But, if there be anything which enforces
this idea more than another, it is the unequal dates at which it
received this approval. From first to last, nearly two years and a half
elapsed; and the Government went into operation something like a year--I
believe more than a year--before the last ratification was made. Is it
then contended that, by this ratification and adoption of the
Constitution, the States surrendered that sovereignty which they had
previously gained? Can it be that men who braved the perils of the
ocean, the privations of the wilderness, who fought the war of the
Revolution, in the hour of their success, when all was sunshine and
peace around them, came voluntarily forward to lay down that community
independence for which they had suffered so much and so long? Reason
forbids it; but, if reason did not furnish a sufficient answer, the
action of the States themselves forbids it. The great State of New
York--great, relatively, then, as she is now--manifested her wisdom in
not receiving merely that implication which belongs to the occasion,
which was accepted by the other States, but she required the positive
assertion of that retention of her sovereignty and power over all her
affairs as the condition on which she ratified the Constitution itself.
I read from Elliott's "Debates" (page 327). Among her resolutions of
ratification is the following:
"That the powers of government may be reassumed by the people whensoever
it shall become necessary to their happiness; that every power,
jurisdiction, and right which is not by the said Constitution clearly
delegated to the Congress of the United States, or the departments of
the Government thereof, remain to the people of the several States, or
to their respective State governments to which they may have granted the
same."
North Carolina, with the Scotch caution which subsequent events have so
well justified, in 1788 passed this resolution:
"_Resolved_, That a declaration of rights, asserting and securing from
encroachments the great principles of civil and religious liberty, and
the unalienable rights of the people, together with amendments to the
most ambiguous and exceptionable parts of the said Constitution of
Government, ought to be laid before Congress and the convention of the
States that shall or may be called for the purpose of amending the said
Constitution, for their consideration, previous to the ratification of
the Constitution aforesaid, on the part of the State of North Carolina."
And in keeping with this North Carolina withheld her ratification; she
allowed the Government to be formed with the number of States which was
required to put it in operation, and still she remained out of the
Union, asserting and recognized in the independence which she had
maintained against Great Britain, and which she had no idea of
surrendering to any other power; and the last State which ratified the
Constitution long after it had in fact gone into effect, Rhode Island,
in the third of her resolutions, says:
"III. That the powers of government may be reassumed by the people
whensoever it shall become necessary to their happiness. That the rights
of the States respectively to nominate and appoint all State officers,
and every other power, jurisdiction, and right, which is not by the said
Constitution clearly delegated to the Congress of the United States, or
the departments of Government thereof, remain to the people of the
several States, or their respective State governments to whom they may
have granted the same."
Here the use of the phrase "State governments" shows how utterly
unwarrantable the construction has been, to say that the reference here
was to the whole people of the States--to the people of all the
States--and not to the people of each of the States severally.
I spoke, however, Mr. President, but a moment ago, of the difference of
politics, products, population, constituting the great motive for the
Union. It was, indeed, its necessity. Had all the people been alike--had
their institutions all been the same--there would have been no interest
to bring them together; there would have been no cause or necessity for
any restraint being imposed upon them. It was the fact that they
differed which rendered it necessary to have some law governing their
intercourse. It was the fact that their products were opposite--that
their pursuits were various--that rendered it the great interest of the
people that they should have free trade existing among each other; that
free trade which Franklin characterized as being between the States such
as existed between the counties of England.
Since that era, however, a fiber then unknown in the United States, and
the production of which is dependent upon the domestic institution of
African slavery, has come to be cultivated in such amounts, to enter so
into the wearing apparel of the world, so greatly to add to the comfort
of the poor, that it may be said to-day that that little fiber, cotton,
wraps the commercial world and binds it to the United States in bonds to
keep the peace with us which no Government dare break. It has built up
the Northern States. It is their great manufacturing interest to-day. It
supports their shipping abroad. It enables them to purchase in the
markets of China, when the high premium to be paid on the milled dollar
would otherwise exclude them from that market. These are a part of the
blessings resulting from that increase and variety of product which
could not have existed if we had all been alike; which would have been
lost to-day unless free trade between the United States was still
preserved.
And here it strikes me as somewhat strange that a book recently issued
has received the commendation of a large number of the representatives
of the manufacturing and commercial States, though, apart from its
falsification of statistics and low abuse of Southern States,
institutions, and interests, the great feature which stands prominently
out from it is the arraignment of the South for using their surplus
money in buying the manufactures of the North. How a manufacturing and
commercial people can be truly represented by those who would inculcate
such doctrines as these, is to me passing strange. Is it vain boasting
which renders you anxious to proclaim to the world that we buy our
buckets, our rakes, and our shovels from you? No, there is too much good
sense in the people for that; and, therefore, I am left at a loss to
understand the motive, unless it be that deep-rooted hate which makes
you blind to your own interest when that interest is weighed in the
balance with the denunciation and detraction of your brethren of the
South.
The great principle which lay at the foundation of this fixed standard,
the Constitution of the United States, was the equality of rights
between the States. This was essential; it was necessary; it was a step
which had to be taken first, before any progress could be made. It was
the essential requisite of the very idea of sovereignty in the State; of
a compact voluntarily entered into between sovereigns; and it is that
equality of right under the Constitution on which we now insist. But
more: when the States united they transferred their forts, their
armament, their ships, and their right to maintain armies and navies, to
the Federal Government. It was the disarmament of the States, under the
operation of a league which made the warlike operations, the powers of
defense, common to them all. Then, with this equality of the States,
with this disarmament of the States, if there had been nothing in the
Constitution to express it, I say the protection of every constitutional
right would follow as a necessary incident, and could not be denied by
any one who could understand and would admit the true theory of such a
Government.
We claim protection, first, because it is our right; secondly, because
it is the duty of the General Government; and, thirdly, because we have
entered into a compact together, which deprives each State of the power
of using all the means which it might employ for its own defense. This
is the general theory of the right of protection. What is the exception
to it? Is there an exception? If so, who made it? Does the Constitution
discriminate between different kinds of property? Did the Constitution
attempt to assimilate the institutions of the different States
confederated together? Was there a single State in this Union that would
have been so unfaithful to the principles which had prompted them in
their colonial position, and which had prompted them, at a still earlier
period, to seek and try the temptations of the wilderness; is there one
which would have consented to allow the Federal Government to control or
to discriminate between her institutions and those of her confederate
States?
But, if it be contended that this is argument, and that you need
authority, I will draw it from the fountain; from the spring before it
had been polluted; from the debates in the formation of the
Constitution; from the views of those who at least it will be admitted
understood what they were doing.
Mr. Randolph, it will be recollected, introduced a _projet_ for a
Government, consisting of a series of resolutions. Among them was one
which proposed to give Congress the power "to call forth the force of
the Union against any member of the Union failing to fulfill its duty
under the articles thereof." That was, to give Congress the power to
coerce the States; to bring the States into subjection to the Federal
Government. Now, sir, let us see how that was treated; and first I will
refer to one whose wisdom, as we take a retrospective view, seems to me
marvelous. Not conspicuous in debate, at least not among the names which
first occur when we think of that bright galaxy of patriots and
statesmen, he was the man who, above all others, it seems to me, laid
his finger upon every danger, and indicated the course which that danger
was to take. I refer to Mr. Mason.
"Mr. Mason observed, not only that the present Confederation was
deficient in not providing for coercion and punishment against
delinquent States, but argued very cogently that punishment could not,
in the nature of things, be executed on the States collectively; and,
therefore, that such a Government was necessary as could directly
operate on individuals, and would punish those only whose guilt required
it."[199]
Mr. Madison, who has been called sometimes the father of the
Constitution, upon the same question, said:
"A union of the States containing such an ingredient seemed to provide
for its own destruction. The use of force against a State would look
more like a declaration of war than an infliction of punishment, and
would probably be considered by the party attacked as a dissolution of
all previous compacts by which it might be bound."
Mr. Hamilton, who, if I were to express a judgment by way of comparison,
I would say was the master intellect of the age in which he lived, whose
mind seemed to penetrate profoundly every question with which he
grappled, and who seldom failed to exhaust the subject which he
treated--Mr. Hamilton, in speaking of the various powers necessary to
maintain a Government, came to clause four:
"4. Force, by which may be understood a _coercion of laws, or coercion
of arms_. Congress have not the former, except in few cases. In
particular States, this coercion is nearly sufficient; though he held
it, in most cases, not entirely so. A certain portion of military force
is absolutely necessary in large communities. Massachusetts is now
feeling this necessity, and making provision for it. But how can this
force be exerted on the States collectively? It is impossible. It
amounts to a war between the parties. Foreign powers, also, will not be
idle spectators. They will interpose; the confusion will increase; and a
dissolution of the Union will ensue."
The consequence was, the proposition was lost. In support of this same
idea of community independence, which I have suggested, the argument
upon the proposition least likely to have exhibited it, that to give
power to restrain the slave-trade, shows the Northern and Southern men
all arguing and presenting different views, yet concurred in this, that
there could be no power to restrain a State from importing what she
pleased. As the Senator from Vermont [Mr. Collamer] looks somewhat
surprised at my statement, I will refer to the authority. Mr. Rutledge
said:
"Religion and humanity had nothing to do with this question. Interest
alone is the governing principle with nations. The true question at
present is, whether the Southern States shall or shall not be parties to
the Union. If the Northern States consult their interest, they will not
oppose the increase of slaves, which will increase the commodities of
which they will become the carriers."[200]
Mr. Pinckney: "South Carolina can never receive the plan if it prohibits
the slave-trade. In every proposed extension of the powers of Congress,
that State has expressly and watchfully excepted that of meddling with
the importation of negroes. If the States be all left at liberty on this
subject, South Carolina may, perhaps, by degrees, do of herself what is
wished, as Virginia and Maryland already have done."[201]
"Mr. Sherman was for leaving the clause as it stands. He disapproved of
the slave-trade; yet, as the States were now possessed of the right to
import slaves, as the public good did not require it to be taken from
them, and as it was expedient to have as few objections as possible to
the proposed scheme of government, he thought it best to leave the
matter as we find it."[202]
"Mr. Baldwin had conceived national objects alone to be before the
Convention: not such as, like the present, were of a local nature.
Georgia was decided on this point. That State has always hitherto
supposed a General Government to be the pursuit of the central States,
who wished to have a vortex for everything; that her distance would
preclude her from equal advantage; and that she could not prudently
purchase it by yielding national powers. From this, it might be
understood in what light she would view an attempt to abridge one of her
favorite prerogatives.
"If left to herself, she may probably put a stop to the evil. As one
ground for this conjecture, he took notice of the sect of ----, which,
he said was a respectable class of people who carried their ethics
beyond the mere _equality of men_, extending their humanity to the
claims of the whole animal creation."[203]
"Mr. Gerry thought we had nothing to do with the conduct of the States
as to slaves, but ought to be careful not to give any sanction to
it."[204]
"Mr. King thought the subject should be considered in a political light
only. If two States will not agree to the Constitution, as stated on one
side, he could affirm with equal belief, on the other, that great and
equal opposition would be experienced from the other States. He remarked
on the exemption of slaves from duty, while every other import was
subjected to it, as an inequality that could not fail to strike the
commercial sagacity of the Northern and Middle States."[205]
Here, as will be observed, everywhere was recognized and admitted the
doctrine of community independence and State equality--no interference
with the institutions of a State--no interference even prospectively
save and except with their consent; and thus it followed that at one
time it was proposed to except, from the power to prohibit the further
introduction of Africans, those States which insisted upon retaining the
power; and finally it was agreed that a date should be fixed beyond
which, probably, none of them desired to retain it. These were States
acting in their sovereign capacity; they possessed power to do as they
pleased; and that was the view which they took of it. I ask, then, how
are we, their descendants, those holding under their authority, to
assume a power which they refused to admit, upon principles eternal and
lying at the foundation of the Constitution itself?
If, then, there be no such distinction or discrimination; if protection
be the duty (and who will deny it?) with which this Government is
charged, and for which the States pay taxes, because of which they
surrendered their armies and their navies; if general protection be the
general duty, I ask, in the name of reason and constitutional right--I
ask you to point me to authority by which a discrimination is made
between slave-property and any other. Yet this is the question now
fraught with evil to our country. It is this which has raised the
hurricane threatening to sweep our political institutions before it.
This is the dark spot which some already begin to fear may blot out the
constellation of the Union from the political firmament of mankind. Does
it not become us, then, calmly to consider it, justly to weigh it; to
hold it in balances from which the dust has been blown, in order that we
may see where truth, right, and the obligations of the Constitution
require us to go?
It may be pardoned to one who, from his earliest youth up, has been
connected with a particular party, who has always believed that the
welfare and the safety of the country most securely rested with that
party, who has seen in the triumph of Democracy the triumph of the
Union, and who has believed for years past that the downfall of
Democracy would be its destruction--it may be pardoned, I say, under
such circumstances as these, to such a person as that, to refer even in
this connection to that feature of the particular point which I am
discussing, which has been brought forward by the recent action of that
party. States met together to consult as brethren, to see whether they
could agree as well upon the candidate as upon the creed, and it was
apparent that division had entered into our ranks. After days of
discussion, we saw that party convention broken. We saw the enemies of
Democracy waiting to be invited to its funeral, and jestingly looking
into the blank faces of those of us to whom the telegraph brought the
sad intelligence. I hope this is, however, but the mist of the morning.
I have faith in the Democracy, and that it still lives. I have faith in
the patriotism and in the good sense of the Democracy, that they will
assert the truth, boldly pronounce it, meet the issue, and I trust in
the good sense and patriotism of the people for their success.
In this connection, it may be permissible to review our present party
condition. For a long time two parties divided the people of the United
States. The controversy was mainly upon questions of expediency;
sometimes of constitutionality. They divided men in all of the States.
The contest was sometimes won by one, and sometimes by the other. The
Whig party lives now but in history, yet it has a history of which any
of its members may be proud. It bore the high but not successful part of
stemming the tide of popular impulse, and thus failed to attain the
highest power. Differing from them upon the points at issue, I offer the
homage of my respect to those who, adhering to what they believed to be
true, go down sooner than find success in the abandonment of principle.
With the disappearance of that party--and perhaps for the very reasons
that caused its disappearance--up rose radical organizations who strode
so far beyond progressive Democracy that Democracy took the place now
left vacant by the old Whig party, and became the reservoir into which
all conservatism was poured. Therefore it is that so many of those men,
eminent in their day, eminent for their services, eminent in their
history, have approved of the Democratic party in the present condition
of the country as the only conservative element which remains in our
politics. In the midst of this radicalism, of this revolutionary
tendency, it becomes not the regret of a partisan merely; it is the
sadness of an American citizen, that the party on which the conservative
hopes of the country hang has been threatened with division, and
possibly may not hereafter be united. Thanks to a sanguine temperament,
thanks to an abiding faith, thanks to a confidence in the Providence
which has so long ruled for good the destiny of my country, I believe it
will reunite, and reunite upon sound and acceptable principles. At
least, I hope so.
From the postulates which I have laid down result the fourth and fifth
resolutions. They are the two which I expect to be opposed. They contain
the assertion of the equality of rights of all the people of the United
States in the Territories, and they declare the obligation of the
Congress to see these rights protected. I admit that the United States
may acquire eminent domain. I admit that the United States may have
sovereignty over territory; otherwise the sovereign jurisdiction which
we obtained by conquest or treaty would not pass to us. I deny that
their agent, the Federal Government, under the existing Constitution,
can have eminent domain; I deny that it can have sovereignty. I consider
it as the mere agent of the States--an agent of limited power; and that
it can do nothing save that which the Constitution empowers it to
perform; and that, though the treaty or the deed of cession may direct
or control, it can not enlarge or expand the powers of the Congress;
that it is not sovereign in any essential particular. It has functions
to perform, and those functions I propose now to consider.
The power of Congress over the Territories--a subject not well defined
in the Constitution of the United States--has been drawn from various
sources by different advocates of that power. One has found it in the
grant of power to dispose of the Territory and other public property.
That is to say, because the agent was authorized to sell a particular
thing, or to dispose of it by grant or barter, therefore he has
sovereign power over that and all else which the principal, constituting
him an agent, may hereafter acquire! The property, besides the land,
consisted of forts, of ships, of armaments, and other things which had
belonged to the States in their separate capacity, and were turned over
to the Government of the Confederation, and transferred to the
Government of the United States, and of this, together with the land so
transferred, the Federal Government had the power to dispose; and of
territory thereafter acquired, of arms thereafter made or purchased, of
forts thereafter constructed, or custom-houses, or docks, or lights, or
buoys; of all these, of course, it had power to dispose. It had the
power to create them; it must, of necessity, have had the power to
dispose of them. It was only necessary to confer the power to dispose of
those things which the Federal Government did not create, of those
things which came to it from the States, and over which they might
signify their will for its control.
I look upon it as the mere power to dispose of, for considerations and
objects defined in the trust, the land held in the United States, none
of which then was within the limits of the States, and the other public
property which the United States received from the States after the
formation of the Union. I do not agree with those who say the Government
has no power to establish a temporary and civil government within a
Territory. I stand half-way between the extremes of squatter sovereignty
and of Congressional sovereignty. I hold that the Congress has power to
establish a civil government; that it derives it from the grants of the
Constitution--not the one which is referred to; and I hold that that
power is limited and restrained, first, by the Constitution itself, and
then by every rule of popular liberty and sound discretion, to the
narrowest limits which the necessities of the case require. The Congress
has power to defend the territory, to repel invasion, to suppress
insurrection; the Congress has power to see the laws executed. For this
it may have a civil magistracy--territorial courts. It has the power to
establish a Federal judiciary. To that Federal judiciary, from these
local courts, may come up to be decided questions with regard to the
laws of the United States and the Constitution of the United States.
These, combined, give power to establish a temporary government,
sufficient, perhaps, for the simple wants of the inhabitants of a
Territory, until they shall acquire the population, until they shall
have the resources and the interests which justify them in becoming a
State. I am sustained in this view of the case by an opinion of the
Supreme Court of the United States in 1845, in the case of Pollard's
Lessee _vs_. P. Hagan (3 Howard, 222, 223), in which the Court say:
"Taking the legislative acts of the United States, and the States of
Virginia and Georgia, and their deeds of cession to the United States,
and giving to each separately, and to all jointly, a fair
interpretation, we must come to the conclusion that it was the intention
of the parties to invest the United States with the eminent domain of
the country ceded, both national and municipal, for the purposes of
temporary government; and to hold it in trust for the performance of the
stipulations and conditions expressed in the deeds of cession and the
legislative acts connected with them."
This was a question of land. It was land lying between high and low
water, over which the United States claimed to have and to exercise
authority, because of the terms on which Alabama had been admitted into
the Union. In that connection the Court say, in the same case:
"When Alabama was admitted into the Union, on an equal footing with the
original States, she succeeded to all the rights of sovereignty,
jurisdiction, and eminent domain which Georgia possessed at the date of
the cession, except so far as this right was diminished by the public
lands remaining in the possession and under the control of the United
States for the temporary purpose provided for in the deeds of cession
and the legislative acts connected with it. Nothing remained in the
United States, according to the terms of the agreement, but the public
lands; and if an express stipulation had been inserted in the agreement,
granting the municipal right of sovereignty and eminent domain to the
United States, such stipulation would have been void and inoperative;
because the United States has no constitutional capacity to exercise
municipal jurisdiction, sovereignty, or eminent domain within the limits
of a State or elsewhere, except in the cases in which it is expressly
granted."
Another case arose not long afterward, in which not land, but religion,
was involved, where suit was brought against the municipality of New
Orleans because they would not allow a dead body to be exposed at a
place where, according to the religious rites of those interested, it
was deemed they had a right thus to expose it. On that the Supreme Court
say, speaking of the ordinance for the government of Louisiana:
"So far as they conferred political rights and secured civil and
religious liberties (which are political rights) the laws of Congress
were all suspended by the State Constitution; nor is any part of them in
force, unless they were adopted by the Constitution of Louisiana, as
laws of the State."[206]
Thus we find the Supreme Court sustaining the proposition that the
Federal Government has power to establish a temporary civil government
within the limits of a Territory, but that it can enact no law which
will endure beyond the temporary purposes for which such government was
established. In other cases the decisions of the Court run in the same
line; and in 1855 the then Attorney-General, most learned in his
profession--and in what else is he not learned, for he may be said to be
a man of universal acquirements?--Attorney-General Cushing then foretold
what must have been the decision of the Supreme Court on the Missouri
Compromise, anticipating the decision subsequently made in the case of
Dred Scott; that decision for which the venerable justices have been so
often and so violently arraigned. He foretold it as the necessary
consequence from the line of precedents descending from 1842, affirmed
and reaffirmed in different cases, and now bearing on a case similar in
principle, and only different in the mere reference to the subject
involved from those which had gone before. As connected with the
decision which had agitated the peace of the country; as the
anticipation of that decision before it was made, viewing it as the
necessary consequence of the decisions which the court had made before;
if it be the pleasure of the Senate, I ask my friend from South Carolina
[Mr. Chesnut] to read for me a letter of the Attorney-General, being an
official answer made by him in relation to the military reservation
which was involved in the question before him.
Mr. Chesnut read from the "Opinions of the Attorneys-General," vol. vii,
page 575:
"The Supreme Court has determined that the United States never held any
municipal sovereignty, jurisdiction, or right of soil in the territory
of which any of the new States have been formed, except for temporary
purposes, and to execute the trusts created by the deeds of cession....
"By the force of the same principle, and in the same line of
adjudications, the Supreme Court would have had to decide that the
provision of the act of March 6, 1820, which undertakes to determine in
advance the municipal law of all that portion of the original province
of Louisiana which lies north of the parallel 36° 30' north latitude,
was null and void _ab incepto_, if it had not been repealed by a recent
act of Congress. (Compare iv, Statutes at Large, p. 848, and x, Statutes
at Large, p. 289.) For an act of Congress which pretends of right, and
without consent or compact, to impose on the municipal power of any new
State or States limitations and restrictions not imposed on all, is
contrary to the fundamental condition of the Confederation, according to
which there is to be equality of right between the old and new States
'in all respects whatsoever.'"
Mr. Davis: It was not long after this official opinion of the
Attorney-General before the case arose on which the decision was made
which has so agitated the country. Fortunate indeed was it for the
public peace that land and religion had been decided--those questions on
which men might reason had been the foundation of judicial
decision--before that which drives all reason, it seems, from the mind
of man, came to be presented the question whether Cuffee should be kept
in his normal condition or not; the question whether the Congress of the
United States could decide what might or might not be property in a
Territory--the case being that of an officer of the army sent into a
Territory to perform his public duty, having taken with him his negro
slave. The court, however, in giving their decision in this case--or
their opinion, if it suits gentlemen better--have gone into the question
with such clearness, such precision, and such amplitude, that it will
relieve me from the necessity of arguing it any further than to make a
reference to some sentences contained in that opinion. And here let me
say, I can not see how those who agreed on a former occasion that the
constitutional right of the slaveholder to take his property into the
Territory--the constitutional power of the Congress and the
constitutional power of the Territory to legislate upon that
subject--should be a judicial question, can now attempt to escape the
operation of an opinion which covers the exact political question which,
it was known beforehand, the Court would be called upon to decide.
Decided in strictness of technical language, it was known it could not
be. Hundreds, thousands, a vast variety of cases may arise, and
centuries elapse, and leave that Court, if our Union still exists,
deciding questions in relation to that character of property in the
Territories; but the great and fundamental idea was that, after thirty
years of angry controversy, dividing the people and paralyzing the arm
of the Federal Government, some umpire should be sought which would
compose the difficulty and set it upon a footing to leave us in future
to proceed in peace; and that umpire was selected which the Constitution
had provided to decide questions of law. I ask my friend to read some
extracts from the decision.
Mr. Chesnut read as follows, from the case of Dred Scott _vs._ Sandford,
pp. 55-57:
"The Territory being a part of the United States, the Government and the
citizen both enter it under the authority of the Constitution, with
their respective rights defined and marked out; and the Federal
Government can exercise no power over his person or property beyond what
that instrument confers, nor lawfully deny any right which it has
reserved....
"The powers over person and property, of which we speak, are not only
not granted to Congress, but are in express terms denied, and they are
forbidden to exercise them. And this prohibition is not confined to the
States, but the words are general, and extend to the whole territory
over which the Constitution gives it power to legislate, including those
portions of it remaining under territorial government, as well as that
covered by States. It is a total absence of power everywhere within the
dominion of the United States, and places the citizens of a Territory,
so far as these rights are concerned, on the same footing with citizens
of the States, and guards them as firmly and plainly against any inroads
which the General Government might attempt under the plea of implied or
incidental powers. And if Congress itself can not do this--if it is
beyond the powers conferred on the Federal Government--it will be
admitted, we presume, that it could not authorize a territorial
government to exercise them. It could confer no power on any local
government, established by its authority, to violate the provisions of
the Constitution....
"And if the Constitution recognizes the right of property of the master
in the slave, and makes no distinction between that description of
property and other property owned by a citizen, no tribunal, acting
under the authority of the United States, whether it be legislative,
executive, or judicial, has a right to draw such a distinction, or deny
to it the benefit of the provisions and guarantees which have been
provided for the protection of private property against the
encroachments of the Government....
"This is done in plain words--too plain to be misunderstood. And no word
can be found in the Constitution which gives Congress a greater power
over slave-property, or which entitles property of that kind to less
protection than property of any other description. The only power
conferred is the power coupled with the duty of guarding and protecting
the owner in his rights.
"Upon these considerations, it is the opinion of the Court that the act
of Congress which prohibited a citizen from holding and owning property
of this kind, in the territory of the United States north of the line
therein mentioned, is not warranted by the Constitution, and is
therefore void; and that neither Dred Scott himself, nor any of his
family, were made free by being carried into this territory, even if
they had been carried there by the owner, with the intention of becoming
a permanent resident."
Mr. Davis: Here, then, Mr. President, I say the umpire selected as the
referee in the controversy has decided that neither the Congress nor its
agent, the territorial government, has the power to invade or impair the
right of property within the limits of a Territory. I will not inquire
whether it be technically a decision or not. It was obligatory on those
who selected the umpire and agreed to abide by the award.
It is well known to those who have been associated with me in the two
Houses of Congress that, from the commencement of the question, I have
been the determined opponent of what is called squatter sovereignty. I
never gave it countenance, and I am now least of all disposed to give it
quarter. In 1848 it made its appearance for good purposes. It was
ushered in by a great and good man. He brought it forward because of
that distrust which he had in the capacity of the Government to bear the
rude shock to which it was exposed. His apprehension, no doubt, to some
extent sharpened and directed his patriotism, and his reflection led him
to a conclusion to which, I doubt not, to-day he adheres as tenaciously
as ever; but from which it was my fortune, good or ill, to dissent when
his letter was read to me in manuscript--I being, together with some
other persons, asked, though not by the writer, whether or not it should
be sent. At the first blush I believed it to be a fallacy--a fallacy
fraught with mischief; that it escaped an issue which was upon us which
it was our duty to meet; that it escaped it by a side path, which led to
a greater danger. I thought it a fallacy which would surely be exploded.
I doubted then, and still more for some time afterward, when held to a
dread responsibility for the position which I occupied. I doubted
whether I should live to see that fallacy exploded. It has been more
speedily, and, to the country, more injuriously than I anticipated. In
the mean time, what has been its operation? Let Kansas speak--the first
great field on which the trial was made. What was then the consequence?
The Federal Government withdrawing control, leaving the contending
sections, excited to the highest point upon this question, each to send
forth its army, Kansas became the battle-field, and Kansas the cry,
which wellnigh led to civil war. This was the first fruit. More deadly
than the fatal upas, its effect was not limited to the mere spot of
ground on which the dew fell from its leaves, but it spread throughout
the United States; it kindled all which had been collected for years of
inflammable material. It was owing to the strength of our Government and
the good sense of the quiet masses of the people that it did not wrap
our country in one widespread conflagration.
What right had Congress then, or what right has it now, to abdicate any
power conferred upon it as trustee of the States? What right had
Congress then, or has it now, to shrink from the performance of a duty
because the mere counters spread on the table may be swept off, when
they have not answered the purposes for which they were placed? What is
it to you, or me, or any one, when we weigh our own continuation in
place against the great interests of which we are conservators; against
the welfare of the country, and the liberty of our posterity to the
remotest ages? What is it, I say, which can be counted in the balance on
our side against the performance of that duty which is imposed upon us?
If any one believes Congress has not the constitutional power, he acts
conscientiously in insisting upon Congress not usurping it. If any one
believes that the squatters upon the lands of the United States within a
Territory are invested with sovereignty, having won it by some of those
processes unknown to history, without grant, or without revolution,
without money and without price, he, adhering to the theory, may pursue
it to its conclusion. To the first class, those who claim sovereign
power over the Territories for Congress, I say, lay your hand upon the
Constitution, and find there the warrant of your authority. Of the
second, those of whom I have last spoken, I ask, in the Constitution,
reason, right, or justice, what is there to sustain your theory?
The phraseology which has been employed on this question seems to me to
betray a strange confusion of ideas--to speak of a sovereignty, a
plenary legislative power deriving its power from an agent; a
sovereignty, held subject to articles with the formation of which that
sovereignty had nothing to do; a compact to which it was not a party!
You say to a sovereign: "A and B have agreed on certain terms between
themselves, and you must govern your conduct according to them; yet I do
not deny your sovereignty!" That is, the power to do as they please,
provided it conforms to the rule which others chose to lay down! Can
this be a definition of sovereignty?
But again, sir, nothing seems to me more illogical than the argument
that this power is acquired by a grant from the Congress, connected with
the other argument that Congress have not got the power to do the act
themselves; that is to say, that the recipient takes more than the giver
possessed; that a Territorial Legislature can do anything which a State
Legislature can do, and that "subject to the Constitution" means merely
the restraints imposed upon both. This is confounding the whole theory
and the history of our Government. The States were the grantors; they
made the compact; they gave the Federal agent its powers; they inhibited
themselves from doing certain things, and all else they retained to
themselves. This Federal agent got just so much as the States chose to
give--no more. It could do nothing save by warrant of the authority of
the grant made by the States. Therefore its powers are not comparable to
the powers of the State Legislature, because one is the creature of
grant, and the other the exponent of sovereign power. The Supreme Court
have covered the whole ground of the relation of the Congress to the
Territorial Legislatures--the agent of the States and the agent of the
Congress--and the restrictions put upon the one are those put upon the
other, in language so clear as to render it needless further to labor
the subject.
In 1850, following the promulgation of this notion of squatter
sovereignty, we had the idea of non-intervention introduced into the
Senate of the United States, and it is strange to me how that idea has
expanded. It seems to have been more malleable than gold; to have been
hammered out to an extent that covers boundless regions undiscovered by
those who proclaimed the doctrine. Non-intervention then meant, as the
debates show, that Congress should neither prohibit nor establish
slavery in the Territories. That I hold to now. Will any one suppose
that Congress then meant by non-intervention that Congress should
legislate in no regard in respect to property in slaves? Why, sir, the
very acts which they passed at the time refute it. There is the fugitive
slave law, and that abomination of laws which assumed to confiscate the
property of a citizen who should attempt to bring it into this District
with intent to remove it to sell it at some other time and at some other
place. Congress acted then upon the subject--acted beyond the limit of
its authority, as I believed, confidently believed; and, if ever that
act comes before the Supreme Court, I feel satisfied they will declare
it null and void. Are we to understand that those men, thus acting at
the very moment, intended by non-intervention to deny and repudiate the
laws they were then creating? The man who stood most prominently the
advocate of the measures of that year, who, great in many periods of our
history, perhaps shone then with the brightest light his genius ever
emitted--I refer to Henry Clay--has given his own view on this subject;
and I suppose he may be considered as the highest authority. On June 18,
1850, I had introduced an amendment to the compromise bill, providing:
"And that all laws, or parts of laws, usages, or customs, preëxisting in
the Territories acquired by the United States from Mexico, and which in
said Territories restrict, abridge, or obstruct, the full enjoyment of
any right of person or property of a citizen of the United States, as
recognized or guaranteed by the Constitution or laws of the United
States, are hereby declared and shall be held as repealed."
Upon that, Mr. Clay said:
"Mr. President: I thought that upon this subject there had been a clear
understanding in the Senate that the Senate would not decide itself upon
the _lex loci_ as it respects slavery; that the Senate would not allow
the Territorial Legislature to pass any law upon that question. In other
words, that it would leave the operation of the local law, or of the
Constitution of the United States upon that local law, to be decided by
the proper and competent tribunal--the Supreme Court of the United
States."--(_Appendix to Congressional Globe_, Thirty-first Congress,
first session, p. 916.)
That was the position taken by Mr. Clay, the leader. A mere sentence
will show with what view I regarded the dogma of non-intervention when
that amendment was offered. I said:
"But what is non-intervention seems to vary as often as the light and
shade of every fleeting cloud. It has different meanings in every State,
in every county, in every town. If non-intervention means that we shall
not have protection for our property in slaves, then I always was, and
always shall be, opposed to it. If it means that we shall not have the
protection of the law because it would favor slaveholders, that Congress
shall not legislate so as to secure to us the benefits of the
Constitution, then I am opposed to non-intervention, and shall always be
opposed to it."--(_Appendix to Congressional Globe_, Thirty-first
Congress, first session, p. 919.)
Mr. Downs, one of the Committee of Thirteen, and an advocate of the
measures, said:
"What I understand by non-intervention is, an interposition of Congress
prohibiting, or establishing, or interfering with slavery."--(_Appendix
to Congressional Globe_, Thirty-first Congress, first session, p. 99.)
By what species of legerdemain this doctrine of non-intervention has
come to extend to a paralysis of the Government on the whole subject, to
exclude the Congress from any kind of legislation whatever, I am at a
loss to conceive. Certain it is, it was not the theory of that period,
and it was not contended for in all the controversies we had then. I had
no faith in it then; I considered it an evasion; I held that the duty of
Congress ought to be performed; that the issue was before us, and ought
to be met, the sooner the better; that truth would prevail if presented
to the people; borne down to-day, it would rise up to-morrow; and I
stood then on the same general plea which I am making now. The Senator
from Illinois [Mr. Douglas] and myself differed at that time, as I
presume we do now. We differed radically then. He opposed every
proposition which I made, voting against propositions to give power to a
Territorial Legislature to protect slave-property which should be taken
there; to remove the obstructions of the Mexican laws; voting for a
proposition to exclude the conclusion that slavery might be taken there;
voting for the proposition expressly to prohibit its introduction;
voting for the proposition to keep in force the laws of Mexico which
prohibited it. Some of these votes, it is but just to him I should say,
I think he gave perforce of his instructions; but others of them, I
think it is equally fair to suppose, were outside of the limits of any
instructions which could have been given before the fact.
In 1854, advancing in this same general line of thought, the Congress,
in enacting territorial bills, left out a provision which had before
been usually contained in them, requiring the Legislature of the
Territory to submit its laws to the Congress of the United States. It
has been sometimes assumed that this was the recognition of the power of
the Territorial Legislature to exercise plenary legislation, as might
that of a State. It will be remembered that, when our present form of
government was instituted, there were those who believed the Federal
Government should have the power of revision over the laws of a State.
It was long and ably contended for in the Convention which formed the
Constitution; and one of the compromises which was made was an appellate
power--to lodge power in the Supreme Court to decide all questions of
constitutional law.
But did this omission of the obligation to send here the laws of the
Territories work this grant of power to the Territorial Legislature?
Certainly not; it could not; and that it did not is evinced by the fact
that, at a subsequent period, the organic act was revised because the
legislation of the Territory of Kansas was offensive to the Congress of
the United States. Congress could not abdicate its authority; it could
not abandon its trust; and, when it omitted the requirement that the
laws should be sent back, it created a _casus_ which required it to act
without the official records being laid before it, as they would have
been if the obligation had existed. That was all the difference. It was
not enforcing upon the agent the obligation to send the information. It
left Congress, as to its power, just where it was. I find myself
physically unable to go as fully into the subject as I intended, and
therefore, omitting a reference to those acts, suffice it to say that
here was the recognition of the obligation of Congress to interpose
against a Territorial Legislature for the protection of personal right.
That is what we ask of Congress now. I am not disposed to ask this
Congress to go into speculative legislation. I am not one of those who
would willingly see this Congress enact a code to be applied to all
Territories and for all time to come. I only ask that cases, as they
arise, may be met according to the exigency. I ask that when personal
and property rights in the Territories are not protected, then the
Congress, by existing laws and governmental machinery, shall intervene
and provide such means as will secure in each case, as far as may be, an
adequate remedy. I ask no slave code, nor horse code, nor machine code.
I ask that the Territorial Legislature be made to understand beforehand
that the Congress of the United States does not concede to them the
power to interfere with the rights of person or property guaranteed by
the Constitution, and that it will apply the remedy, if the Territorial
Legislature should so far forget its duty, so far transcend its power,
as to commit that violation of right. That is the announcement of the
fifth resolution.
* * * * *
These are the general views which I entertain of our right of protection
and the duty of the Government. They are those which are entertained by
the constituency I have the honor to represent, whose delegation has
recently announced those principles at Charleston. I honor them, and I
approve their conduct. I think their bearing was worthy of the
mother-State which sent them there; and I doubt not she will receive
them with joy and gratitude. They have asserted and vindicated her
equality of right. By that asserted equality of right I doubt not she
will stand. For weal or for woe, for prosperity or adversity, for the
preservation of the great blessings which we enjoy, or the trial of a
new and separate condition, I trust Mississippi never will surrender the
smallest atom of the sovereignty, independence, and equality, to which
she was born, to avoid any danger or any sacrifice to which she may
hereby be exposed.
The sixth resolution of the series declares at what time a State may
form a Constitution and decide upon her domestic institutions. I deny
this right to the territorial condition, because the Territory belongs
in common to the States. Every citizen of the United States, as a joint
owner of that Territory, has a right to go into it with any property
which he may possess. These territorial inhabitants require municipal
law, police, and government. They should have them, but they should be
restricted to their own necessities. They have no right within their
municipal power to attempt to decide the rights of the people of the
States. They have no right to exclude any citizen of the United States
from owning and equally enjoying this common possession; it is for the
purpose of preserving order, and giving protection to rights of person
and property, that a municipal territorial government should be
instituted.
The last resolution refers to a law founded on a provision of the
Constitution, which contains an obligation of faith to every State of
the Union; and that obligation of faith has been violated by thirteen
States of the Confederacy--as many as originally fought the battles of
the Revolution and established the Confederation. Is it to be expected
that a compact thus broken in part, violated in its important features,
will be regarded as binding in all else? Is the free trade which the
North sought in the formation of the Union, and for which the States
generally agreed to give Congress the power to regulate commerce, to be
trampled under foot by laws of obstruction, not giving to the citizens
of the South that free transit across the territory of the Northern
States which we might claim from any friendly state under Christendom;
and is Congress to stand powerless by, on the doctrine of
non-intervention? We have a right to claim abstinence from interference
with our rights from any Government on the earth. Shall we claim no more
from that which we have constituted for our own purposes, and which we
support by draining our own means for its support?
We have had agitation, changing in its form, and gathering intensity,
for the last forty years. It was first for political power, and directed
against new States; now it has assumed a social form, is all-prevailing,
and has reached the point of revolution and civil war. For it was only
last fall that an overt act was committed by men who were sustained by
arms and money, raised by extensive combination among the
non-slaveholding States, to carry treasonable war against the State of
Virginia, because now, as before the Revolution, and ever since, she
held the African in bondage. This is part of the history and marks the
necessity of the times. It warns us to stop and reflect, to go back to
the original standard, to measure our acts by the obligation of our
fathers, by the pledges they made one to the other, to see whether we
are conforming to our plighted faith, and to ask seriously, solemnly,
looking each other inquiringly in the face, what we should do to save
our country.
This agitation being at first one of sectional pride for political
power, has at last degenerated or grown up to (as you please) a trade.
There are men who habitually set aside a portion of money which they are
annually to apply to what are called "charitable purposes"--that is to
say, so far as I understand it, to support some vagrant lecturer, whose
purpose is agitation and mischief wherever he goes. This constitutes,
therefore, a trade; a class of people are thus employed--employed for
mischief, for incendiary purposes, perhaps not always understood by
those who furnish the money; but such is the effect; such is the result
of their action; and in this state of the case I call upon the Senate to
affirm the great principles on which our institutions rest. In no spirit
of crimination have I stated the reasons why I present it. For these
reasons I call upon them now to restrain the growth of evil passion, and
to bring back the public sense as far as in them lies, by earnest and
united effort, if it may be, to crown our country with peace, and start
it once more in its primal channel on a career of progressive prosperity
and justice.
The majority section can not be struggling for additional power in order
to preserve their rights. If any of them ever believed in what is called
Southern aggression, they know now they have the majority in the
representative districts and in the electoral college. They can not,
therefore, fear an invasion of their rights. They need no additional
political power to protect them from that. The argument, then, or the
reason on which this agitation commenced, has passed away; and yet we
are asked, if a party hostile to our institutions shall gain possession
of the Government, that we shall stand quietly by, and wait for an overt
act. Overt act! Is not a declaration of war an overt act? What would be
thought of a country that, after a declaration of war, and while the
enemy's fleets were upon the sea, should wait until a city had been
sacked before it would say that war existed, or resistance should be
made? The power of resistance consists, in no small degree, in meeting
the evil at the outer gate. I can speak for myself--and I have no right
to speak for others--when I say, that, if I belonged to a party
organized on the basis of making war on any section or interest in the
United States, if I know myself, I would instantly quit it. We have made
no war against you. We have asked no discrimination in our favor. We
claim to have but the Constitution fairly and equally administered. To
consent to less than this would be to sink in the scale of manhood;
would be to make our posterity so degraded that they would curse this
generation for robbing them of the rights their Revolutionary fathers
bequeathed them....
Among the great purposes declared in the preamble of the Constitution is
one to provide for the general welfare. Provision for the general
welfare implies general fraternity. This Union was not expected to be
held together by coercion; the power of force as a means was denied.
They sought, however, to bind it perpetually together with that which
was stronger than triple bars of brass and steel--the ceaseless current
of kind offices, renewing and renewed in an eternal flow, and gathering
volume and velocity as it rolled. It was a function intended not for the
injury of any. It declared its purpose to be the benefit of all.
Concessions which were made between the different States in the
Convention prove the motive. Each gave to the other what was necessary
to it; what each could afford to spare. Young as a nation, our triumphs
under this system have had no parallel in human history. We have tamed a
wilderness; we have spanned a continent. We have built up a granary that
secures the commercial world against the fear of famine. Higher than all
this, we have achieved a moral triumph. We have received, by hundreds of
thousands, a constant tide of immigrants--energetic, if not well
educated, fleeing, some from want, some from oppression, some from the
penalties of violated law--received them into our society; and by the
gentle suasion of a Government which exhibits no force, by removing want
and giving employment, they have subsided into peaceful citizens, and
have increased the wealth and power of our country.
If, then, this temple so blessed, and to the roof of which we were about
to look to see it extended over the continent, giving a protecting arm
to infant republics that need it--if this temple is tottering on its
pillars, what, I ask, can be a higher or nobler duty for the Senate to
perform than to rush to its pillars and uphold them, or be crushed in
the attempt? We have tampered with a question which has grown in
magnitude by each year's delay. It requires to be plainly met--the truth
to be told. The patriotism and the sound sense of the people, whenever
the Federal Government from its high places of authority shall proclaim
the truth in unequivocal language, will, in my firm belief, receive and
approve it. But so long as we deal, like the Delphic oracle, in words of
double meaning, so long as we attempt to escape from responsibility, and
exhibit our fear to declare the truth by the fact that we do not act
upon it, we must expect speculative theory to occupy the mind of the
public, and error to increase as time rolls on. But, if the sad fate
should be ours, for this most minute cause, to destroy our Government,
the historian who shall attempt philosophically to examine the question
will, after he has put on his microscopic glasses and discovered it, be
compelled to cry out, "Veritably so the unseen insect in the course of
time destroys the mighty oak!" Now, I believe--may I not say I believe?
if not, then I hope--there is yet time, by the full, explicit
declaration of the truth, to disabuse the popular mind, to arouse the
popular heart, to expose the danger from lurking treason and
ill-concealed hostility; to rally a virtuous people to their country's
rescue, who, circling closer and deeper as the storm gathers fury,
around the ark of their fathers' covenant, will place it in security,
there happily to remain a sign of fraternity, justice, and equality, to
our remotest posterity.
[Footnote 199: Elliott's "Debates," vol. v, p. 133.]
[Footnote 200: Ibid., p. 457.]
[Footnote 201: Elliot's "Debates," vol. v, p. 457.]
[Footnote 202: Ibid.]
[Footnote 203: Ibid, p. 459.]
[Footnote 204: Ibid.]
[Footnote 205: Ibid., p. 460.]
[Footnote 206: Permoli _vs_. First Municipality, 3 Howard, 610.]
APPENDIX G.
Correspondence between the Commissioners of South Carolina and the
President of the United States (Mr. Buchanan) relative to the forts in
the harbor of Charleston.
_Letter of the Commissioners to the President_.
Washington, _December_ 28, 1860.
Sir: We have the honor to transmit to you a copy of the full powers from
the Convention of the People of South Carolina, under which we are
"authorized and empowered to treat with the Government of the United
States for the delivery of the forts, magazines, lighthouses, and other
real estate, with their appurtenances, within the limits of South
Carolina, and also for an apportionment of the public debt, and for a
division of all other property held by the Government of the United
States as agent of the confederated States of which South Carolina was
recently a member; and generally to negotiate as to all other measures
and arrangements proper to be made and adopted in the existing relation
of the parties, and for the continuance of peace and amity between this
Commonwealth and the Government at Washington."
In the execution of this trust, it is our duty to furnish you, as we now
do, with an official copy of the ordinance of secession, by which the
State of South Carolina has resumed the powers she delegated to the
Government of the United States, and has declared her perfect
sovereignty and independence.
It would also have been our duty to have informed you that we were ready
to negotiate with you upon all such questions as are necessarily raised
by the adoption of this ordinance, and that we were prepared to enter
upon this negotiation with the earnest desire to avoid all unnecessary
and hostile collision, and so to inaugurate our new relations as to
secure mutual respect, general advantage, and a future of good-will and
harmony beneficial to all the parties concerned.
But the events of the last twenty-four hours render such an assurance
impossible. We came here the representatives of an authority which
could, at any time within the past sixty days, have taken possession of
the forts in Charleston Harbor, but which, upon pledges given in a
manner that, we can not doubt, determined to trust to your honor rather
than to its own power. Since our arrival here an officer of the United
States, acting, as we are assured, not only without but against your
orders, has dismantled one fort and occupied another, thus altering, to
a most important extent, the condition of affairs under which we came.
Until these circumstances are explained in a manner which relieves us of
all doubt as to the spirit in which these negotiations shall be
conducted, we are forced to suspend all discussion as to any
arrangements by which our mutual interests might be amicably adjusted.
And, in conclusion, we would urge upon you the immediate withdrawal of
the troops from the harbor of Charleston. Under present circumstances,
they are a standing menace which renders negotiation impossible, and, as
our recent experience shows, threatens speedily to bring to a bloody
issue questions which ought to be settled with temperance and judgment.
We have the honor, sir, to be, very respectfully, your obedient
servants,
R. W. BARNWELL,}
J. H. ADAMS, } _Commissioners_.
JAMES L. ORR, }
To the President of the United States.
_Reply of the President to the Commissioners_.
Washington City, _December_ 30, 1860.
Gentlemen: I have the honor to receive your communication of 28th inst.,
together with a copy of your "full powers from the Convention of the
People of South Carolina," authorizing you to treat with the Government
of the United States on various important subjects therein mentioned,
and also a copy of the ordinance bearing date on the 20th inst.,
declaring that "the union now subsisting between South Carolina and
other States, under the name of 'The United States of America,' is
hereby dissolved."
In answer to this communication, I have to say that my position as
President of the United States was clearly defined in the message to
Congress of the 3d instant. In that I stated that, "apart from the
execution of the laws, so far as this may be practicable, the Executive
has no authority to decide what shall be the relations between the
Federal Government and South Carolina. He has been invested with no such
discretion. He possesses no power to change the relations heretofore
existing between them, much less to acknowledge the independence of that
State. This would be to invest a mere executive officer with the power
of recognizing the dissolution of the confederacy among our thirty-three
sovereign States. It bears no resemblance to the recognition of a
foreign _de facto_ government--involving no such responsibility. Any
attempt to do this would, on his part, be a naked act of usurpation. It
is, therefore, my duty to submit to Congress the whole question, in all
its bearings."
Such is my opinion still. I could, therefore, meet you only as private
gentlemen of the highest character, and was entirely willing to
communicate to Congress any proposition you might have to make to that
body upon the subject. Of this you were well aware. It was my earnest
desire that such a disposition might be made of the whole subject by
Congress, who alone possess the power, as to prevent the inauguration of
a civil war between the parties in regard to the possession of the
Federal forts in the harbor of Charleston; and I therefore deeply regret
that, in your opinion, "the events of the last twenty-four hours render
this impossible." In conclusion, you urge upon me "the immediate
withdrawal of the troops from the harbor of Charleston," stating that,
"under present circumstances, they are a standing menace, which renders
negotiation impossible, and, as our present experience shows, threatens
speedily to bring to a bloody issue questions which ought to be settled
with temperance and judgment."
The reason for this change in your position is that, since your arrival
in Washington, "an officer of the United States, acting as we (you) are
assured, not only without your (my) orders, has dismantled one fort and
occupied another, thus altering, to a most important extent, the
condition of affairs under which we (you) came." You also allege that
you came here "the representatives of an authority which could at any
time within the past sixty days have taken possession of the forts in
Charleston Harbor, but which, upon pledges given in a manner that we
(you) can not doubt, determined to trust to your (my) honor rather than
to its own power."
This brings me to a consideration of the nature of those alleged
pledges, and in what manner they have been observed. In my message of
the 3d of December last, I stated, in regard to the property of the
United States in South Carolina, that it "has been purchased for a fair
equivalent 'by the consent of the Legislature of the State, for the
erection of forts, magazines, arsenals,' etc., and over these the
authority 'to exercise exclusive legislation' has been expressly granted
by the Constitution to Congress. It is not believed that any attempt
will be made to expel the United States from this property by force;
but, if in this I should prove to be mistaken, the officer in command of
the forts has received orders to act strictly on the defensive. In such
a contingency, the responsibility for consequences would rightfully rest
upon the heads of the assailants." This being the condition of the
parties on Saturday, 8th December, four of the representatives from
South Carolina called upon me and requested an interview. We had an
earnest conversation on the subject of these forts, and the best means
of preventing a collision between the parties, for the purpose of
sparing the effusion of blood. I suggested, for prudential reasons, that
it would be best to put in writing what they said to me verbally. They
did so accordingly, and on Monday morning, the 10th instant, three of
them presented to me a paper signed by all the representatives from
South Carolina, with a single exception, of which the following is a
copy:
"To his Excellency James Buchanan, _President of the United States_:
"In compliance with our statement to you yesterday, we now express to
you our strong convictions that neither the constituted authorities, nor
any body of the people of the State of South Carolina, will either
attack or molest the United States forts in the harbor of Charleston,
previously to the action of the Convention, and, we hope and believe,
not until an offer has been made, through an accredited representative,
to negotiate for an amicable arrangement of all matters between the
State and the Federal Government, provided that no reënforcements shall
be sent into those forts, and their relative military _status_ shall
remain as at present.
"John McQueen,
"William Porcher Miles,
"M. L. Bonham,
"W. W. Boyce,
"Lawrence M. Keitt.
"Washington, _December 9, 1860_."
And here I must, in justice to myself, remark that, at the time the
paper was presented to me, I objected to the word "provided," as it
might be construed into an agreement, on my part, which I never would
make. They said that nothing was further from their intention; they did
not so understand it, and I should not so consider it. It is evident
they could enter into no reciprocal agreement with me on the subject.
They did not profess to have authority to do this, and were acting in
their individual character. I considered it as nothing more, in effect,
than the promise of highly honorable gentlemen to exert their influence
for the purpose expressed. The event has proved that they have
faithfully kept this promise, although I have never since received a
line from any one of them, or from any member of the Convention on the
subject. It is well known that it was my determination, and this I
freely expressed, not to reënforce the forts in the harbor, and thus
produce a collision, until they had been actually attacked, or until I
had certain evidence that they were about to be attacked. This paper I
received most cordially, and considered it as a happy omen that peace
might still be preserved, and that time might thus be gained for
reflection. This is the whole foundation for the alleged pledge.
But I acted in the same manner I would have done had I entered into a
positive and formal agreement with parties capable of contracting,
although such an agreement would have been, on my part, from the nature
of my official duties, impossible.
The world knows that I have never sent any reënforcements to the forts
in Charleston Harbor, and I have certainly never authorized any change
to be made "in their relative military _status_."
Bearing upon this subject, I refer you to an order issued by the
Secretary of War, on the 11th instant, to Major Anderson, but not
brought to my notice until the 21st instant. It is as follows:
"_Memorandum of verbal instructions to Major_ Anderson, _First
Artillery, commanding Fort Moultrie, South Carolina_:
"You are aware of the great anxiety of the Secretary of War that a
collision of the troops with the people of this State shall be avoided,
and of his studied determination to pursue a course, with reference to
the military force and forts in this harbor, which shall guard against
such a collision. He has, therefore, carefully abstained from increasing
the force at this point, or taking any measures which might add to the
present excited state of the public mind, or which would throw any doubt
on the confidence he feels that South Carolina will not attempt by
violence to obtain possession of the public works, or to interfere with
their occupancy. But, as the counsel of rash and impulsive persons may
possibly disappoint these expectations of the Government, he deems it
proper that you should be prepared with instructions to meet so unhappy
a contingency. He has, therefore, directed me, verbally, to give you
such instructions.
"You are carefully to avoid every act which would needlessly tend to
provoke aggression; and, for that reason, you are not, without evident
and imminent necessity, to take up any position which could be construed
into the assumption of a hostile attitude; but you are to hold
possession of the forts in this harbor, and, if attacked, you are to
defend yourself to the last extremity. The smallness of your force will
not permit you, perhaps, to occupy more than one of the three forts; but
an attack on or attempt to take possession of either of them will be
regarded as an act of hostility, and you may then put your command into
either of them which you may deem most proper, to increase its power of
resistance. You are also authorized to take similar defensive steps
whenever you have tangible evidence of a design to proceed to a hostile
act.
"D. P. Butler, _Assistant Adjutant-General_.
"Fort Moultrie, South Carolina, _December 11, 1860_.
"This is in conformity to my instructions to Major Buel.
"John B. Floyd, _Secretary of War_."
These were the last instructions transmitted to Major Anderson before
his removal to Fort Sumter, with a single exception in regard to a
particular which does not, in any degree, affect the present question.
Under these circumstances it is clear that Major Anderson acted upon his
own responsibility, and without authority, unless, indeed, he had
"tangible evidence of a design to proceed to a hostile act" on the part
of the authorities of South Carolina, which has not yet been alleged.
Still he is a brave and honorable officer, and justice requires that he
should not be condemned without a fair hearing.
Be this as it may, when I learned that Major Anderson had left Fort
Moultrie, and proceeded to Fort Sumter, my first promptings were to
command him to return to his former position, and there to await the
contingencies presented in his instructions. This could only have been
done, with any degree of safety to the command, by the concurrence of
the South Carolina authorities. But, before any steps could possibly
have been taken in this direction, we received information, dated on the
28th instant, that "the Palmetto flag floated out to the breeze at
Castle Pinckney, and a large military force went over last night (the
27th) to Fort Moultrie." Thus the authorities of South Carolina, without
waiting or asking for any explanation, and doubtless believing, as you
have expressed it, that the officer had acted not only without, but
against my orders, on the very next day after the night when the removal
was made, seized, by a military force, two of the three Federal forts in
the harbor of Charleston, and have covered them under their own flag,
instead of that of the United States. At this gloomy period of our
history, startling events succeed each other rapidly. On the very day
(the 27th instant) that possession of these two forts was taken, the
Palmetto flag was raised over the Federal Custom-House and Post-Office
in Charleston; and on the same day every officer of the
customs--collector, naval officers, surveyor, and appraisers--resigned
their offices. And this, although it was well known, from the language
of my message, that as an executive officer I felt myself bound to
collect the revenue at the port of Charleston under the existing laws.
In the harbor of Charleston we now find three forts confronting each
other, over all of which the Federal flag floated only four days ago;
but now over two of them this flag has been supplanted, and the Palmetto
flag has been substituted in its stead. It is under all these
circumstances that I am urged immediately to withdraw the troops from
the harbor of Charleston, and am informed that, without this,
negotiation is impossible. This I can not do; this I will not do. Such
an idea was never thought of by me in any possible contingency. No
allusion to it had ever been made in any communication between myself
and any human being. But the inference is, that I am bound to withdraw
the troops from the only fort remaining in the possession of the United
States in the harbor of Charleston, because the officer then in command
of all the forts thought proper, without instructions, to change his
position from one of them to another. I can not admit the justice of any
such inference.
At this point of writing I have received information, by telegram, from
Captain Humphreys, in command of the arsenal at Charleston, that "it has
to-day (Sunday, the 30th) been taken by force of arms." It is estimated
that the munitions of war belonging to the United States in this arsenal
are worth half a million of dollars.
Comment is needless. After this information, I have only to add that,
while it is my duty to defend Fort Sumter, as a portion of the public
property of the United States, against hostile attacks from whatever
quarter they may come, by such means as I may possess for this purpose,
I do not perceive how such a defense can be construed into a menace
against the city of Charleston.
With great personal regard, I remain
Yours, very respectfully,
JAMES BUCHANAN.
To Honorable Robert W. Barnwell, James H. Adams, James L. Orr.
_Reply of the Commissioners to the President_.
Washington, D.C., _January_ 1, 1861.
Sir: We have the honor to acknowledge the receipt of your letter of the
30th December, in reply to a note addressed by us to you on the 28th of
the same month, as commissioners from South Carolina.
In reference to the declaration with which your reply commences, that
"your position as President of the United States was clearly defined in
the message to Congress of the 3d instant," that you possess "no power
to change the relations heretofore existing between South Carolina and
the United States, much less to acknowledge the independence of that
State"; and that, consequently, you could meet us only as private
gentlemen of the highest character, with an entire willingness to
communicate to Congress any proposition we might have to make, we deem
it only necessary to say that, the State of South Carolina having, in
the exercise of that great right of self-government which underlies all
our political organizations, declared herself sovereign and independent,
we, as her representatives, felt no special solicitude as to the
character in which you might recognize us. Satisfied that the State had
simply exercised her unquestionable right, we were prepared, in order to
reach substantial good, to waive the formal considerations which your
constitutional scruples might have prevented you from extending. We came
here, therefore, expecting to be received as you did receive us, and
perfectly content with that entire willingness of which you assured us,
to submit any proposition to Congress which we might have to make upon
the subject of the independence of the State. That willingness was ample
recognition of the condition of public affairs which rendered our
presence necessary. In this position, however, it is our duty, both to
the State which we represent and to ourselves, to correct several
important misconceptions of our letter into which you have fallen.
You say, "It was my earnest desire that such a disposition might be made
of the whole subject by Congress, who alone possesses the power to
prevent the inauguration of a civil war between the parties in regard to
the possession of the Federal forts in the harbor of Charleston; and I,
therefore, deeply regret that, in your opinion, 'the events of the last
twenty-four hours render this impossible.'" We expressed no such
opinion, and the language which you quote as ours is altered in its
sense by the omission of a most important part of the sentence. What we
did say was, "But the events of the last twenty-four hours render _such
an assurance_ impossible." Place that "assurance," as contained in our
letter, in the sentence, and we are prepared to repeat it.
Again, professing to quote our language, you say: "Thus the authorities
of South Carolina, without waiting or asking for any explanation, and
doubtless believing, as you have expressed it, that the officer had
acted not only without, but against my orders," etc. We expressed no
such opinion in reference to the belief of the people of South Carolina.
The language which you have quoted was applied solely and entirely to
_our assurance_, obtained here, and based, as you well know, upon your
own declaration--a declaration which, at that time, it was impossible
for the authorities of South Carolina to have known. But, without
following this letter into all its details, we propose only to meet the
chief points of the argument.
Some weeks ago, the State of South Carolina declared her intention, in
the existing condition of public affairs, to secede from the United
States. She called a convention of her people to put her declaration in
force. The Convention met and passed the ordinance of secession. All
this you anticipated, and your course of action was thoroughly
considered. In your annual message you declared that you had no right,
and would not attempt, to coerce a seceding State, but that you were
bound by your constitutional oath, and would defend the property of the
United States within the borders of South Carolina, if an attempt was
made to take it by force. Seeing very early that this question of
property was a difficult and delicate one, you manifested a desire to
settle it without collision. You did not reënforce the garrisons in the
harbor of Charleston. You removed a distinguished and veteran officer
from the command of Fort Moultrie, because he attempted to increase his
supply of ammunition. You refused to send additional troops to the same
garrison when applied for by the officer appointed to succeed him. You
accepted the resignation of the oldest and most eminent member of your
Cabinet, rather than allow these garrisons to be strengthened. You
compelled an officer stationed at Fort Sumter to return immediately to
the arsenal forty muskets which he had taken to arm his men. You
expressed, not to one, but to many, of the most distinguished of our
public characters, whose testimony will be placed upon the record
whenever it is necessary, your anxiety for a peaceful termination of
this controversy, and your willingness not to disturb the military
_status_ of the forts, if commissioners should be sent to the
Government, whose communications you promised to submit to Congress. You
received and acted on assurances from the highest official authorities
of South Carolina, that no attempt would be made to disturb your
possession of the forts and property of the United States, if you would
not disturb their existing condition until commissioners had been sent,
and the attempt to negotiate had failed. You took from the members of
the House of Representatives a written memorandum that no such attempt
should be made, "provided that no reënforcements shall be sent into
those forts, and their relative military _status_ shall remain as at
present." And, although you attach no force to the acceptance of such a
paper, although you "considered it as nothing more in effect than the
promise of highly honorable gentlemen," as an obligation on one side
without corresponding obligation on the other, it must be remembered (if
we are rightly informed) that you were pledged, if you ever did send
reënforcements, to return it to those from whom you had received it
before you executed your resolution. You sent orders to your officers,
commanding them strictly to follow a line of conduct in conformity with
such an understanding.
Besides all this, you had received formal and official notice, from the
Governor of South Carolina, that we had been appointed commissioners and
were on our way to Washington. You knew the implied condition under
which we came; our arrival was notified to you, and an hour appointed
for an interview. We arrived in Washington on Wednesday, at three
o'clock, and you appointed an interview with us at one the next day.
Early on that day, Thursday, the news was received here of the movement
of Major Anderson. That news was communicated to you immediately, and
you postponed our meeting until half-past two o'clock on Friday, in
order that you might consult your Cabinet. On Friday we saw you, and we
called upon you then to redeem your pledge. You could not deny it. With
the facts we have stated, and in the face of the crowning and conclusive
fact that your Secretary of War had resigned his seat in the Cabinet,
upon the publicly avowed ground that the action of Major Anderson had
violated the pledged faith of the Government, and that unless the pledge
was instantly redeemed he was dishonored, denial was impossible; you did
not deny it. You do not deny it now, but you seek to escape from its
obligations on two grounds: 1. That _we_ terminated all negotiation by
demanding, as a preliminary, the withdrawal of the United States troops
from the harbor of Charleston; and, 2. That the authorities of South
Carolina, instead of asking explanation and giving you the opportunity
to vindicate yourself, took possession of other property of the United
States. We will examine both.
In the first place, we deny positively that we have ever, in any way,
made any such demand. Our letter is in your possession; it will stand by
this on the record. In it we inform you of the objects of our mission.
We say that it would have been our duty to assure you of our readiness
to commence negotiations with the most earnest and anxious desire to
settle all questions between us amicably, and to our mutual advantage,
but that events had rendered that assurance impossible. We stated the
events, and we said that, until some satisfactory explanation of these
events was given us, we could not proceed; and then, having made this
request for explanation, we added: "And, in conclusion, we would urge
upon you the immediate withdrawal of the troops from the harbor of
Charleston. Under present circumstances they are a standing menace,
which renders negotiation impossible," etc. "Under present
circumstances!" What circumstances? Why, clearly the occupation of Fort
Sumter, and the dismantling of Fort Moultrie by Major Anderson, in the
face of your pledges, and without explanation or practical disavowal.
And there is nothing in the letter which would or could have prevented
you from declining to withdraw the troops, and offering the restoration
of the _status_ to which you were pledged, if such had been your desire.
It would have been wiser and better, in our opinion, to have withdrawn
the troops, and this opinion we urged upon you, but we _demanded_
nothing but such an explanation of the events of the last twenty-four
hours as would restore our confidence in the spirit with which the
negotiation should be conducted. In relation to this withdrawal of the
troops from the harbor, we are compelled, however, to notice one passage
of your letter. Referring to it, you say: "This I can not do; this I
will not do. Such an idea was never thought of by me in any possible
contingency. No allusion to it had ever been made in any communication
between myself and any human being."
In reply to this statement, we are compelled to say that your
conversation with us left upon our minds the distinct impression that
you did seriously contemplate the withdrawal of the troops from
Charleston Harbor. And, in support of this impression, we would add that
we have the positive assurance of gentlemen of the highest possible
public reputation and the most unsullied integrity--men whose name and
fame, secured by long service and patriotic achievement, place their
testimony beyond cavil--that such suggestions had been made to and urged
upon you by them, and had formed the subject of more than one earnest
discussion with you. And it was this knowledge that induced us to urge
upon you a policy which had to recommend it its own wisdom and the
weight of such authority. As to the second point, that the authorities
of South Carolina, instead of asking explanations, and giving you the
opportunity to vindicate yourself, took possession of other property of
the United States, we would observe, first, that, even if this were so,
it does not avail you for defense, for the opportunity for decision was
afforded you before these facts occurred. We arrived in Washington on
Wednesday. The news from Major Anderson reached here early on Thursday,
and was immediately communicated to you. All that day, men of the
highest consideration--men who had striven successfully to lift you to
your great office--who had been your tried and true friends through the
troubles of your Administration--sought you and entreated you to act--to
act at once. They told you that every hour complicated your position.
They only asked you to give the assurance that, if the facts were so--if
the commander had acted without and against your orders, and in
violation of your pledges--you would restore the _status_ you had
pledged your honor to maintain.
You refused to decide. Your Secretary of War--your immediate and proper
adviser in this whole matter--waited anxiously for your decision, until
he felt that delay was becoming dishonor. More than twelve hours passed,
and two Cabinet meetings had adjourned before you knew what the
authorities of South Carolina had done, and your prompt decision at any
moment of that time would have avoided the subsequent complications.
But, if you had known the acts of the authorities of South Carolina,
should that have prevented your keeping your faith? What was the
condition of things? For the last sixty days, you have had in Charleston
Harbor not force enough to hold the forts against an equal enemy. Two of
them were empty; one of those two, the most important in the harbor. It
could have been taken at any time. You ought to know, better than any
man, that it would have been taken, but for the efforts of those who put
their trust in your honor. Believing that they were threatened by Fort
Sumter especially, the people were, with difficulty, restrained from
securing, without blood, the possession of this important fortress.
After many and reiterated assurances given on your behalf, which we can
not believe unauthorized, they determined to forbear, and in good faith
sent on their commissioners to negotiate with you. They meant you no
harm, wished you no ill. They thought of you kindly, believed you true,
and were willing, as far as was consistent with duty, to spare you
unnecessary and hostile collision. Scarcely had their commissioners
left, than Major Anderson waged war. No other words will describe his
action. It was not a peaceful change from one fort to another; it was a
hostile act in the highest sense--one only justified in the presence of
a superior enemy and in imminent peril. He abandoned his position,
spiked his guns, burned his gun-carriages, made preparations for the
destruction of his post, and withdrew under cover of the night to a
safer position. This was war. No man could have believed (without your
assurance) that any officer could have taken such a step, "not only
without orders, but against orders." What the State did was in simple
self-defense; for this act, with all its attending circumstances, was as
much war as firing a volley; and, war being thus begun, until those
commencing it explained their action, and disavowed their intention,
there was no room for delay; and, even at this moment, while we are
writing, it is more than probable, from the tenor of your letter, that
reënforcements are hurrying on to the conflict, so that, when the first
gun shall be fired, there will have been, on your part, one continuous
consistent series of actions commencing in a demonstration essentially
warlike, supported by regular reënforcement, and terminating in defeat
or victory. And all this without the slightest provocation; for, among
the many things which you have said, there is one thing you can not
say--you have waited anxiously for news from the seat of war, in hopes
that delay would furnish some excuse for this precipitation. But this
"tangible evidence of a design to proceed to a hostile act, on the part
of the authorities of South Carolina" (which is the only justification
of Major Anderson), you are forced to admit "has not _yet_ been
alleged." But you have decided. You have resolved to hold by force what
you have obtained through our misplaced confidence, and, by refusing to
disavow the action of Major Anderson, have converted his violation of
orders into a legitimate act of your Executive authority. Be the issue
what it may, of this we are assured, that, if Fort Moultrie has been
recorded in history as a memorial of Carolina gallantry, Fort Sumter
will live upon the succeeding page as an imperishable testimony of
Carolina faith.
By your course you have probably rendered civil war inevitable. Be it
so. If you choose to force this issue upon us, the State of South
Carolina will accept it, and, relying upon Him who is the God of justice
as well as the God of hosts, will endeavor to perform the great duty
which lies before her, hopefully, bravely, and thoroughly.
Our mission being one for negotiation and peace, and your note leaving
us without hope of a withdrawal of the troops from Fort Sumter, or of
the restoration of the _status quo_ existing at the time of our arrival,
and intimating, as we think, your determination to reënforce the
garrison in the harbor of Charleston, we respectfully inform you that we
propose returning to Charleston on to-morrow afternoon.
We have the honor to be, sir, very respectfully, your obedient servants,
R. W. BARNWELL, }
J. H. ADAMS, } _Commissioners_.
JAMES L. ORR, }
To his Excellency the President of the United States.
The last communication is endorsed as follows:
Executive Mansion, 3½ _o'clock, Wednesday_.
This paper, just presented to the President, is of such a character that
he declines to receive it.
APPENDIX H.
Speech on the state of the country, by Mr. Davis, of Mississippi, in the
Senate of the United States, January 10, 1861--a motion to print the
special message of the President of the United States, of January 9th,
being under consideration.
Mr. Davis: Mr. President, when I took the floor yesterday, I intended to
engage somewhat in the argument which has heretofore prevailed in the
Senate upon the great questions of constitutional right, which have
divided the country from the beginning of the Government. I intended to
adduce some evidences, which I thought were conclusive, in favor of the
opinions which I entertain; but events, with a current hurrying on as it
progresses, have borne me past the point where it would be useful for me
to argue, by the citing of authorities, the question of rights. To-day,
therefore, it is my purpose to deal with events. Abstract argument has
become among the things that are past. We have to deal now with facts;
and, in order that we may meet those facts and apply them to our present
condition, it is well to inquire what is the state of the country. The
Constitution provides that the President shall, from time to time,
communicate information on the state of the Union. The message which is
now under consideration gives us very little, indeed, beyond that which
the world--less, indeed, than reading men generally--knew before it was
communicated.
What, Senators, to-day is the condition of the country? From every
corner of it comes the wailing cry of patriotism, pleading for the
preservation of the great inheritance we derived from our fathers. Is
there a Senator who does not daily receive letters appealing to him to
use even the small power which one man here possesses to save the rich
inheritance our fathers gave us? Tears are trickling down the stern
faces of men who have bled for the flag of their country, and are
willing now to die for it; but patriotism stands powerless before the
plea that the party about to come into power laid down a platform, and
that come what will, though ruin stare us in the face, consistency must
be adhered to, even though the Government be lost.
In this state of the case, then, we turn and ask, What is the character
of the Administration? What is the Executive department doing? What
assurance have we there for the safety of the country? But we come back
from that inquiry with a mournful conviction that feeble hands now hold
the reins of state; that drivelers are taken in as counselors, not
provided by the Constitution; that vacillation is the law; and the
policy of this great Government is changed with every changing rumor of
the day; nay, more, it is changing with every new phase of causeless
fear. In this state of the case, after complications have been
introduced into the question, after we were brought to the verge of war,
after we were hourly expecting by telegraph to learn that the conflict
had commenced, after nothing had been done to insure the peace of the
land, we are told in this last hour that the question is thrown at the
door of Congress, and here rests the responsibility.
Had the garrison at Charleston, representing the claim of the Government
to hold the property in a fort there, been called away thirty days, nay,
ten days ago, peace would have spread its pinions over this land, and
calm negotiation would have been the order of the day. Why was it not
recalled? No reason yet has been offered, save that the Government is
bound to preserve its property; and yet look from North to South, from
East to West, wherever we have constructed forts to defend States
against a foreign foe, and everywhere you find them without a garrison,
except at a few points where troops are kept for special purposes; not
to coerce or to threaten a State, but stationed in seacoast
fortifications, there merely for the purposes of discipline and
instruction as artillerists. You find all the other forts in the hands
of fort-keepers and ordnance-sergeants, and, before a moral and
patriotic people, standing safely there as the property of the country.
I asked in this Senate, weeks ago: "What causes the peril that is now
imminent at Fort Moultrie; is it the weakness of the garrison?" and then
I answered, "No, it is its presence, not its weakness." Had an
ordnance-sergeant there represented the Federal Government, had there
been no troops, no physical power to protect it, I would have pledged my
life upon the issue that no question ever would have been made as to its
seizure. Now, not only there, but elsewhere, we find movements of troops
further to complicate this question, and probably to precipitate us upon
the issue of civil war; and, worse than all, this Government, reposing
on the consent of the governed; this Government, strong in the
affections of the people; this Government (I describe it as our fathers
made it) is now furtively sending troops to occupy positions lest "the
mob" should seize them. When before in the history of our land was it
that a mob could resist the sound public opinion of the country? When
before was it that an unarmed magistrate had not the power, by crying,
"I command the peace," to quell a mob in any portion of the land? Yet
now we find, under cover of night, troops detached from one position to
occupy another. Fort Washington, standing in its lonely grandeur, and
overlooking the home of the Father of his Country, near by the place
where the ashes of Washington repose, built there to prevent a foreign
foe from coming up the Potomac with armed ships to take the
capital--Fort Washington is garrisoned by marines sent secretly away
from the navy yard at Washington. And Fort McHenry, memorable in our
history as the place where, under bombardment, the star-spangled banner
floated through the darkness of night, the point which was consecrated
by our national song--Fort McHenry, too, has been garrisoned by a
detachment of marines, sent from this place in an extra train, and sent
under cover of the night, so that even the mob should not know it.
Senators, the responsibility is thrown at the door of Congress. Let us
take it. It is our duty in this last hour to seize the pillars of our
Government and uphold them, though we be crushed in the fall. Then what
is our policy? Are we to drift into war? Are we to stand idly by, and
allow war to be precipitated upon the country? Allow an officer of the
army to make war? Allow an unconfirmed head of a department to make war?
Allow a general of the army to make war? Allow a President to make war?
No, sir. Our fathers gave to Congress the power to declare war, and even
to Congress they gave no power to make war upon a State of the Union. It
could not have been given, except as a power to dissolve the Union.
When, then, we see, as is evident to the whole country, that we are
drifting into a war between the United States and an individual State,
does it become the Senate to sit listlessly by and discuss abstract
questions, and read patchwork from the opinions of men now mingled with
the dust? Are we not bound to meet events as they come before us,
manfully and patriotically to struggle with the difficulties which now
oppress the country?
In the message yesterday, we were even told that the District of
Columbia was in danger. In danger of what? From whom comes the danger?
Is there a man here who dreads that the deliberations of this body are
to be interrupted by an armed force? Is there one who would not prefer
to fall with dignity at his station, the representative of a great and
peaceful Government, rather than to be protected by armed bands? And yet
the rumor is--and rumors seem now to be so authentic that we credit them
rather than other means of information--that companies of artillery are
to be quartered in this city to preserve peace, where the laws have
heretofore been supreme, and that this District is to become a camp by
calling out every able-bodied man within its limits to bear arms under
the militia law. Are we invaded? Is there an insurrection? Are there two
Senators here who would not be willing to go forth as a file, and put
down any resistance which showed itself in this District against the
Government of the United States? Is the reproach meant against these, my
friends from the South, who advocate Southern rights and State rights?
If so, it is a base slander. We claim our rights under the Constitution;
we claim our rights reserved to the States; and we seek by no brute
force to gain any advantage which the law and the Constitution do not
give us. We have never appealed to mobs. We have never asked for the
army and the navy to protect us. On the soil of Mississippi, not the
foot of a Federal soldier has been impressed since 1819, when, flying
from the yellow fever, they sought refuge within the limits of our
State; and on the soil of Mississippi there breathes not a man who asks
for any other protection than that which our Constitution gives us, that
which our strong arms afford, and the brave hearts of our people will
insure in every contingency.
Senators, we are rapidly drifting into a position in which this is to
become a government of the army and navy; in which the authority of the
United States is to be maintained, not by law, not by constitutional
agreement between the States, but by physical force; and will you stand
still and see this policy consummated? Will you fold your arms, the
degenerate descendants of those men who proclaimed the eternal principle
that government rests on the consent of the governed; and that every
people have a right to change, modify, or abolish a government when it
ceases to answer the ends for which it was established, and permit this
Government imperceptibly to slide from the moorings where it was
originally anchored, and become a military despotism? It was well said
by the Senator from New York [Mr. Seward], whom I do not now see in his
seat--well said in a speech wherein I found but little to commend--that
this Union could not be maintained by force, and that a Union of force
was a despotism. It was a great truth, come from what quarter it may.
That was not the Government instituted by our fathers; and against it,
so long as I live, with heart and hand, I will rebel.