States solemnly adjudged that this power did not exist in a Territorial
legislature. Yet such has been the factious temper of the times that the
correctness of this decision has been extensively impugned before the
people, and the question has given rise to angry political conflicts
throughout the country. Those who have appealed from this judgment of our
highest constitutional tribunal to popular assemblies would, if they could,
invest a Territorial legislature with power to annul the sacred rights of
property. This power Congress is expressly forbidden by the Federal
Constitution to exercise. Every State legislature in the Union is forbidden
by its own constitution to exercise it. It can not be exercised in any
State except by the people in their highest sovereign capacity, when
framing or amending their State constitution. In like manner it can only be
exercised by the people of a Territory represented in a convention of
delegates for the purpose of framing a constitution preparatory to
admission as a State into the Union. Then, and not until then, are they
invested with power to decide the question whether slavery shall or shall
not exist within their limits. This is an act of sovereign authority, and
not of subordinate Territorial legislation. Were it otherwise, then indeed
would the equality of the States in the Territories be destroyed, and the
rights of property in slaves would depend not upon the guaranties of the
Constitution, but upon the shifting majorities of an irresponsible
Territorial legislature. Such a doctrine, from its intrinsic unsoundness,
can not long influence any considerable portion of our people, much less
can it afford a good reason for a dissolution of the Union.
The most palpable violations of constitutional duty which have yet been
committed consist in the acts of different State legislatures to defeat the
execution of the fugitive-slave law. It ought to be remembered, however,
that for these acts neither Congress nor any President can justly be held
responsible. Having been passed in violation of the Federal Constitution,
they are therefore null and void. All the courts, both State and national,
before whom the question has arisen have from the beginning declared the
fugitive-slave law to be constitutional. The single exception is that of a
State court in Wisconsin, and this has not only been reversed by the proper
appellate tribunal, but has met with such universal reprobation that there
can be no danger from it as a precedent. The validity of this law has been
established over and over again by the Supreme Court of the United States
with perfect unanimity. It is rounded upon an express provision of the
Constitution, requiring that fugitive slaves who escape from service in one
State to another shall be "delivered up" to their masters. Without this
provision it is a well-known historical fact that the Constitution itself
could never have been adopted by the Convention. In one form or other,
under the acts of 1793 and 1850, both being substantially the same, the
fugitive-slave law has been the law of the land from the days of Washington
until the present moment. Here, then, a clear case is presented in which it
will be the duty of the next President, as it has been my own, to act with
vigor in executing this supreme law against the conflicting enactments of
State legislatures. Should he fail in the performance of this high duty, he
will then have manifested a disregard of the Constitution and laws, to the
great injury of the people of nearly one-half of the States of the Union.
But are we to presume in advance that he will thus violate his duty? This
would be at war with every principle of justice and of Christian charity.
Let us wait for the overt act. The fugitive-slave law has been carried into
execution in every contested case since the commencement of the present
Administration, though Often, it is to be regretted, with great loss and
inconvenience to the master and with considerable expense to the
Government. Let us trust that the State legislatures will repeal their
unconstitutional and obnoxious enactments. Unless this shall be done
without unnecessary delay, it is impossible for any human power to save the
Union.
The Southern States, standing on the basis of the Constitution, have right
to demand this act of justice from the States of the North. Should it be
refused, then the Constitution, to which all the States are parties, will
have been willfully violated by one portion of them in a provision
essential to the domestic security and happiness of the remainder. In that
event the injured States, after having first used all peaceful and
constitutional means to obtain redress, would be justified in revolutionary
resistance to the Government of the Union.
I have purposely confined my remarks to revolutionary resistance, because
it has been claimed within the last few years that any State, whenever this
shall be its sovereign will and pleasure, may secede from the Union in
accordance with the Constitution and without any violation of the
constitutional rights of the other members of the Confederacy; that as each
became parties to the Union by the vote of its own people assembled in
convention, so any one of them may retire from the Union in a similar
manner by the vote of such a convention.
In order to justify secession as a constitutional remedy, it must be on the
principle that the Federal Government is a mere voluntary association of
States, to be dissolved at pleasure by any one of the contracting parties.
If this be so, the Confederacy is a rope of sand, to be penetrated and
dissolved by the first adverse wave of public opinion in any of the States.
In this manner our thirty-three States may resolve themselves into as many
petty, jarring, and hostile republics, each one retiring from the Union
without responsibility whenever any sudden excitement might impel them to
such a course. By this process a Union might be entirely broken into
fragments in a few weeks which cost our forefathers many years of toil,
privation, and blood to establish.
Such a principle is wholly inconsistent with the history as well as the
character of the Federal Constitution. After it was framed with the
greatest deliberation and care it was submitted to conventions of the
people of the several States for ratification. Its provisions were
discussed at length in these bodies, composed of the first men of the
country. Its opponents contended that it conferred powers upon the Federal
Government dangerous to the rights of the States, whilst its advocates
maintained that under a fair construction of the instrument there was no
foundation for such apprehensions. In that mighty struggle between the
first intellects of this or any other country it never occurred to any
individual, either among its opponents or advocates, to assert or even to
intimate that their efforts were all vain labor, because the moment that
any State felt herself aggrieved she might secede from the Union. What a
crushing argument would this have proved against those who dreaded that the
rights of the States would be endangered by the Constitution! The truth is
that it was not until many years after the origin of the Federal Government
that such a proposition was first advanced. It was then met and refuted by
the conclusive arguments of General Jackson, who in his message of the 16th
of January, 1833, transmitting the nullifying ordinance of South Carolina
to Congress, employs the following language:
The right of the people of a single State to absolve themselves at will and
without the consent of the other States from their most solemn obligations,
and hazard the liberties and happiness of the millions composing this
Union, can not be acknowledged. Such authority is believed to be utterly
repugnant both to the principles upon which the General Government is
constituted and to the objects which it is expressly formed to attain.
It is not pretended that any clause in the Constitution gives countenance
to such a theory. It is altogether rounded upon inference; not from any
language contained in the instrument itself, but from the sovereign
character of the several States by which it was ratified. But is it beyond
the power of a State, like an individual, to yield a portion of its
sovereign rights to secure the remainder? In the language of Mr. Madison,
who has been called the father of the Constitution--
It was formed by the States; that is, by the people in each of the States
acting in their highest sovereign capacity, and formed, consequently, by
the same authority which formed the State constitutions. Nor is the
Government of the United States, created by the Constitution, less a
government, in the strict sense of the term, within the sphere of its
powers than the governments created by the constitutions of the States are
within their several spheres. It is, like them, organized into legislative,
executive, and judiciary departments. It operates, like them directly on
persons and things, and, like them, it has at command a physical force for
executing the powers committed to it.
It was intended to be perpetual, and not to be annulled at the pleasure of
any one of the contracting parties. The old Articles of Confederation were
entitled "Articles of Confederation and Perpetual Union between the
States," and by the thirteenth article it is expressly declared that "the
articles of this Confederation shall be inviolably observed by every State,
and the Union shall be perpetual." The preamble to the Constitution of the
United States, having express reference to the Articles of Confederation,
recites that it was established "in order to form a more perfect union."
And yet it is contended that this "more perfect union" does not include the
essential attribute of perpetuity.
But that the Union was designed to be perpetual appears conclusively from
the nature and extent of the powers conferred by the Constitution on the
Federal Government. These powers embrace the very highest attributes of
national sovereignty. They place both the sword and the purse under its
control. Congress has power to make war and to make peace, to raise and
support armies and navies, and to conclude treaties with foreign
governments. It is invested with the power to coin money and to regulate
the value thereof, and to regulate commerce with foreign nations and among
the several States. It is not necessary to enumerate the other high powers
which have been conferred upon the Federal Government. In order to carry
the enumerated powers into effect, Congress possesses the exclusive right
to lay and collect duties on imports, and, in common with the States, to
lay and collect all other taxes.
But the Constitution has not only conferred these high powers upon
Congress, but it has adopted effectual means to restrain the States from
interfering with their exercise. For that purpose it has in strong
prohibitory language expressly declared that--
No State shall enter into any treaty, alliance, or confederation; grant
letters of marque and reprisal; coin money; emit bills of credit; make
anything but gold and silver coin a tender in payment of debts; pass any
bill of attainder, ex post facto law, or law impairing the obligation of
contracts. Moreover--
No State shall without the consent of the Congress lay any imposts or
duties on imports or exports, except what may be absolutely necessary for
executing its inspection laws.
And if they exceed this amount the excess shall belong, to the United
States. And--
No State shall without the consent of Congress lay any duty of tonnage,
keep troops or ships of war in time of peace, enter into any agreement or
compact with another State or with a foreign power, or engage in war,
unless actually invaded or in such imminent danger as will not admit of
delay.
In order still further to secure the uninterrupted exercise of these high
powers against State interposition, it is provided that--
This Constitution and the laws of the United States which shall be made in
pursuance thereof, and all treaties made or which shall be made under the
authority of the United States, shall be the supreme law of the land, and
the judges in every State shall be bound thereby, anything in the
constitution or laws of any State to the contrary notwithstanding.
The solemn sanction of religion has been superadded to the obligations of
official duty, and all Senators and Representatives of the United States,
all members of State legislatures, and all executive and judicial officers,
"both of the United States and of the several States, shall be bound by
oath or affirmation to support this Constitution."
In order to carry into effect these powers, the Constitution has
established a perfect Government in all its forms--legislative, executive,
and judicial; and this Government to the extent of its powers acts directly
upon the individual citizens of every State, and executes its own decrees
by the agency of its own officers. In this respect it differs entirely from
the Government under the old Confederation, which was confined to making
requisitions on the States in their sovereign character. This left it in
the discretion of each whether to obey or to refuse, and they often
declined to comply with such requisitions. It thus became necessary for the
purpose of removing this barrier and "in order to form a more perfect
union" to establish a Government which could act directly upon the people
and execute its own laws without the intermediate agency of the States.
This has been accomplished by the Constitution of the United States. In
short, the Government created by the Constitution, and deriving its
authority from the sovereign people of each of the several States, has
precisely the same right to exercise its power over the people of all these
States in the enumerated cases that each one of them possesses over
subjects not delegated to the United States, but "reserved to the States
respectively or to the people."
To the extent of the delegated powers the Constitution of the United States
is as much a part of the constitution of each State and is as binding upon
its people as though it had been textually inserted therein.
This Government, therefore, is a great and powerful Government, invested
with all the attributes of sovereignty over the special subjects to which
its authority extends. Its framers never intended to implant in its bosom
the seeds of its own destruction, nor were they at its creation guilty of
the absurdity of providing for its own dissolution. It was not intended by
its framers to be the baseless fabric of a vision, which at the touch of
the enchanter would vanish into thin air, but a substantial and mighty
fabric, capable of resisting the slow decay of time and of defying the
storms of ages. Indeed, well may the jealous patriots of that day have
indulged fears that a Government of such high powers might violate the
reserved rights of the States, and wisely did they adopt the rule of a
strict construction of these powers to prevent the danger. But they did not
fear, nor had they any reason to imagine, that the Constitution would ever
be so interpreted as to enable any State by her own act, and without the
consent of her sister States, to discharge her people from all or any of
their federal obligations.
It may be asked, then, Are the people of the States without redress against
the tyranny and oppression of the Federal Government? By no means. The
right of resistance on the part of the governed against the oppression of
their governments can not be denied. It exists independently of all
constitutions, and has been exercised at all periods of the world's
history. Under it old governments have been destroyed and new ones have
taken their place. It is embodied in strong and express language in our own
Declaration of Independence. But the distinction must ever be observed that
this is revolution against an established government, and not a voluntary
secession from it by virtue of an inherent constitutional right. In short,
let us look the danger fairly in the face. Secession is neither more nor
less than revolution. It may or it may not be a justifiable revolution, but
still it is revolution.
What, in the meantime, is the responsibility and true position of the
Executive? He is bound by solemn oath, before God and the country, "to take
care that the laws be faithfully executed," and from this obligation he can
not be absolved by any human power. But what if the performance of this
duty, in whole or in part, has been rendered impracticable by events over
which he could have exercised no control? Such at the present moment is the
case throughout the State of South Carolina so far as the laws of the
United States to secure the administration of justice by means of the
Federal judiciary are concerned. All the Federal officers within its limits
through whose agency alone these laws can be carried into execution have
already resigned. We no longer have a district judge, a district attorney,
or a marshal in South Carolina. In fact, the whole machinery of the Federal
Government necessary for the distribution of remedial justice among the
people has been demolished, and it would be difficult, if not impossible,
to replace it.
The only acts of Congress on the statute book bearing upon this subject are
those of February 28, 1795, and March 3, 1807. These authorize the
President, after he shall have ascertained that the marshal, with his posse
comitatus, is unable to execute civil or criminal process in any particular
case, to call forth the militia and employ the Army and Navy to aid him in
performing this service, having first by proclamation commanded the
insurgents "to disperse and retire peaceably to their respective abodes
within a limited time" This duty can not by possibility be performed in a
State where no judicial authority exists to issue process, and where there
is no marshal to execute it, and where, even if there were such an officer,
the entire population would constitute one solid combination to resist
him.
The bare enumeration of these provisions proves how inadequate they are
without further legislation to overcome a united opposition in a single
State, not to speak of other States who may place themselves in a similar
attitude. Congress alone has power to decide whether the present laws can
or can not be amended so as to carry out more effectually the objects of
the Constitution.
The same insuperable obstacles do not lie in the way of executing the laws
for the collection of the customs. The revenue still continues to be
collected as heretofore at the custom-house in Charleston, and should the
collector unfortunately resign a successor may be appointed to perform this
duty.
Then, in regard to the property of the United States in South Carolina.
This 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.
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
beatings. The course of events is so rapidly hastening forward that the
emergency may soon arise when you may be called upon to decide the
momentous question whether you possess the power by force of arms to compel
a State to remain in the Union. I should feel myself recreant to my duty
were I not to express an opinion on this important subject.
The question fairly stated is, Has the Constitution delegated to Congress
the power to coerce a State into submission which is attempting to withdraw
or has actually withdrawn from the Confederacy? If answered in the
affirmative, it must be on the principle that the power has been conferred
upon Congress to declare and to make war against a State. After much
serious reflection I have arrived at the conclusion that no such power has
been delegated to Congress or to any other department of the Federal
Government. It is manifest upon an inspection of the Constitution that this
is not among the specific and enumerated powers granted to Congress, and it
is equally apparent that its exercise is not "necessary and proper for
carrying into execution" any one of these powers. So far from this power
having been delegated to Congress, it was expressly refused by the
Convention which framed the Constitution.
It appears from the proceedings of that body that on the 31st May, 1787,
the clause "authorizing an exertion of the force of the whole against a
delinquent State" came up for consideration. Mr. Madison opposed it in a
brief but powerful speech, from which I shall extract but a single
sentence. He observed:
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.
Upon his motion the clause was unanimously postponed, and was never, I
believe, again presented. Soon afterwards, on the 8th June, 1787, when
incidentally adverting to the subject, he said: "Any government for the
United States formed on the supposed practicability of using force against
the unconstitutional proceedings of the States would prove as visionary and
fallacious as the government of Congress," evidently meaning the then
existing Congress of the old Confederation.
Without descending to particulars, it may be safely asserted that the power
to make war against a State is at variance with the whole spirit and intent
of the Constitution. Suppose such a war should result in the conquest of a
State; how are we to govern it afterwards? Shall we hold it as a province
and govern it by despotic power? In the nature of things, we could not by
physical force control the will of the people and compel them to elect
Senators and Representatives to Congress and to perform all the other
duties depending upon their own volition and required from the free
citizens of a free State as a constituent member of the Confederacy.
But if we possessed this power, would it be wise to exercise it under
existing circumstances? The object would doubtless be to preserve the
Union. War would not only present the most effectual means of destroying
it, but would vanish all hope of its peaceable reconstruction. Besides, in
the fraternal conflict a vast amount of blood and treasure would be
expended, rendering future reconciliation between the States impossible. In
the meantime, who can foretell what would be the sufferings and privations
of the people during its existence?
The fact is that our Union rests upon public opinion, and can never be
cemented by the blood of its citizens shed in civil war. If it can not live
in the affections of the people, it must one day perish. Congress possesses
many means of preserving it by conciliation, but the sword was not placed
in their hand to preserve it by force.
But may I be permitted solemnly to invoke my countrymen to pause and
deliberate before they determine to destroy this the grandest temple which
has ever been dedicated to human freedom since the world began? It has been
consecrated by the blood of our fathers, by the glories of the past, and by
the hopes of the future. The Union has already made us the most prosperous,
and ere long will, if preserved, render us the most powerful, nation on the
face of the earth. In every foreign region of the globe the title of
American citizen is held in the highest respect, and when pronounced in a
foreign land it causes the hearts of our countrymen to swell with honest
pride. Surely when we reach the brink of the yawning abyss we shall recoil
with horror from the last fatal plunge.