1860—November.
ELECTION OF PRESIDENT LINCOLN—THE SECESSION OF SOUTH CAROLINA—NATURE
OF THE DOCTRINE OF SECESSION—PRESIDENT BUCHANAN PREPARES TO
ENCOUNTER THE SECESSION MOVEMENT—DISTINCTION BETWEEN MAKING WAR
ON A STATE AND ENFORCING THE LAWS OF THE UNITED STATES.
On the 6th of November, 1860, one hundred and eighty Republican
electors of President were chosen by the people of eighteen of the
free states. This determined that Abraham Lincoln was to be
President of the United States for four years from the 4th of March,
1861. As soon as the result of the election was known, the
legislature of South Carolina passed a law for the assembling of a
convention of the people of the State on the 17th of December. The
delegates to the convention were promptly chosen; and when they had
been elected, it was manifest that the assumed right of secession
was about to be exercised by that one of the Southern States in
which attachment to the Union had been for more than thirty years
confined to a few of the wiser and more considerate of her people.
The great man whose political teachings had indoctrinated a
generation with views of the Federal Constitution which, when
logically carried out, would reduce it to a mere league between
independent States dissoluble at the pleasure of its separate
members for causes of which they were separately to judge, had
passed away. I have already had occasion to observe that, while Mr.
Calhoun did not at any time contemplate secession, and while he was
strongly attached to the Union as he understood its fundamental
principle, his political doctrines, assuming the correctness of his
premises, led logically and correctly to the conclusion that the
people of any State could absolve themselves from the obligation to
obey the laws, and to submit to the authority of the United States.
He and those who acted with him in South Carolina during the period
of “Nullification” proposed to apply this State dispensing power to
a single obnoxious law of the United States, without breaking the
whole bond which connected South Carolina with her sister States.
But it was the inevitable result of his political principles that,
if a State convention could absolve its people from the duty of
obeying one law of the United States, by pronouncing it to be
unconstitutional, the same authority could withdraw the State wholly
from the Union, upon her judgment that to remain in it longer was
incompatible with her safety or her interests. The radical vice of
this whole theory was that it assumed the cession of political
powers of legislation and government, made by the people of a State
when they ratified the Constitution of the United States, to be
revocable, not by a State power or right expressly contained in the
instrument, but by a right resulting from the assumed nature of the
Constitution as a compact between sovereign States. The Secession
Ordinance of South Carolina, adopted on the 20th of December, 1860,
which became the model of all the other similar ordinances, exhibits
in a striking manner the character of the theory. It professed to
“repeal” the ordinance of the State which in 1788 had ratified the
Constitution of the United States, and all the subsequent acts of
the legislature which had ratified the amendments of that
Constitution, and to dissolve the union then subsisting between
South Carolina and other States under the name of the “United States
of America.” In other words, the people of South Carolina, assembled
in convention, determined that a cession or grant of political
sovereignty, which they had made to the Government of the United
States in 1788, in an irrevocable form, and without any reservation
save of the powers of government which they did not grant, could yet
be revoked and annulled, not by the right of revolution, but by a
right resulting as a constitutional principle from a compact made
between sovereign and independent political communities. This method
of regarding the Government of the United States as the depositary
of certain powers to be held and exercised so long as the sovereign
parties to the agreement should see fit to allow them to remain, and
to be withdrawn whenever one of the parties should determine to
withdraw them, constituted the whole basis of the doctrine of
secession. If the premises were correct, the deduction was sound.
If, on the other hand, the cession of certain powers of political
sovereignty made by the people of a State when they ratified the
Constitution of the United States constituted a Government, with a
right to rule over the individual inhabitants of that State in the
exercise of the powers conceded, the individuals could no more
absolve themselves collectively, than they could separately, from
the political duty and obligation to obey the laws and submit to the
authority of that Government, especially when that Government
contained within itself, by one of the provisions of its
Constitution, both the means and the right of determining for the
people of every State, whether the laws enacted by Congress were in
conformity with the grants of political power embraced in the
instrument which created it. The grant of the judicial power of the
United States estopped the people of every State from claiming a
right to pass upon the constitutional validity of any exercise of
its legislative or executive authority. Such are the contrasted
theories of the Constitution which were now to come into collision,
after the Constitution had long been administered and acted upon as
an instrument of government embracing a true and rightful
sovereignty over the people of every State in the exercise of
certain enumerated powers.
It is important to observe, however, that this claim of rightful
sovereignty over the inhabitants of every State was not a denial of
the inherent right of revolution, or the right to renounce a
political allegiance, and to make that right available by physical
force, in case of intolerable oppression or arbitrary assumption of
power. The political institutions of this country had their origin
in the exercise of the right of revolution, and however shaped or
administered, they can never be made to exclude it. It is difficult,
in studying the political principles on which individuals or masses
of men acted, or on which they supposed themselves to be acting,
during the period at which I have now arrived, to discriminate
between the right of revolution and the right of secession, as
distinct principles governing their personal conduct. In many minds
they became blended; in many there was but little attention paid to
any such distinction; in many there was nothing more than a state of
excitement, worked into an uncontrollable apprehension of danger
which was stimulated by the political leaders of a section
peculiarly exposed to such apprehensions by what had long been
occurring on the dangerous subject of their social and domestic
condition. But on the threshold of the secession movement, there are
certain things to be carefully noted. The first is, that in the
public proceedings of South Carolina, and of the other States which
followed her example, it was the alleged constitutional right of
secession from the Union, and not the inherent right of revolution,
on which the action was professedly based. The second is, that the
State of South Carolina led the way, in the hope and belief that she
might compel the other cotton States to follow, while it was at
least doubtful whether they would do so, and while it was manifest
that their course would depend very much upon events that could not
be foreseen. This condition of affairs in the months of November and
December imposed upon President Buchanan two imperative duties. In
the first place, he had to encounter the alleged right of secession
asserted, or about to be asserted, by the State of South Carolina;
to meet her public proceedings by a denial of any such right, and to
exercise all the powers with which he then was, or with which he
might thereafter be, clothed by Congress, to prevent any obstruction
to the execution of the laws of the United States within her
borders. In the next place, he had, so far as the Executive of the
United States could so act, to isolate the State of South Carolina
from the other States of that region, and to prevent, if possible,
the spread of the secession movement. What he might be able to do in
this regard would depend, of course, upon future events, and upon a
careful adaptation of his means to his ends. If, notwithstanding all
he could do, the fury of secession was to rapidly sweep through the
cotton States, he could not prevent the formation of some kind of
Southern confederacy. But the very first duty which he had to
perform he proceeded promptly to execute, as soon as it was apparent
that South Carolina was about to adopt an ordinance of secession.
This was to encounter publicly and officially the alleged right of
secession, to define clearly and explicitly to Congress and to the
country the powers which he possessed, or did not possess, for
meeting this exigency; and to announce his policy. By so doing, he
might prevent the spread of the secession movement, if Congress
would aid him by adopting his recommendations. Preparatory to what
he was about to say in his annual message to the Congress which was
to assemble in the early part of December, he required from the
Attorney General (Mr. Black) an official answer to the following
questions:[73]
1. In case of a conflict between the authorities of any State and
those of the United States, can there be any doubt that the laws
of the Federal Government, if constitutionally passed, are
supreme?
2. What is the extent of my official power to collect the duties
on imports at a port where the revenue laws are resisted by a
force which drives the collector from the custom house?
3. What right have I to defend the public property (for instance,
a fort, arsenal and navy yard), in case it should be assaulted?
4. What are the legal means at my disposal for executing those
laws of the United States which are usually administered through
the courts and their officers?
5. Can a military force be used for any purpose whatever under the
Acts of 1795 and 1807, within the limits of a State where there
are no judges, marshal or other civil officers?
Footnote 73:
The President’s letter to the Attorney General, requiring his
opinion on these questions, bears date on the 17th of November,
1860.
[OPINION OF THE ATTORNEY GENERAL.]
ATTORNEY GENERAL’S OFFICE, November 20, 1860.
SIR:—
I have had the honor to receive your note of the 17th, and I now
reply to the grave questions therein propounded as fully as the
time allowed me will permit.
Within their respective spheres of action, the Federal Government
and the government of a State, are both of them independent and
supreme, but each is utterly powerless beyond the limits assigned
to it by the Constitution. If Congress would attempt to change the
law of descents, to make a new rule of personal succession, or to
dissolve the family relations existing in any State, the act would
be simply void; but not more void than would be a State law to
prevent the recapture of fugitives from labor, to forbid the
carrying of the mails, or to stop the collection of duties on
imports. The will of a State, whether expressed in its
constitution or laws, cannot, while it remains in the Confederacy,
absolve her people from the duty of obeying the just and
constitutional requirements of the Central Government. Nor can any
act of the Central Government displace the jurisdiction of a
State; because the laws of the United States are supreme and
binding only so far as they are passed _in pursuance of the
Constitution_. I do not say what might be effected by mere
revolutionary force. I am speaking of legal and constitutional
right.
This is the view always taken by the judiciary, and so universally
adopted that the statement of it may seem commonplace. The Supreme
Court of the United States has declared it in many cases. I need
only refer you to the _United States vs. Booth_, where the present
Chief Justice, expressing the unanimous opinion of himself and all
his brethren, enunciated the doctrine in terms so clear and full
that any further demonstration of it can scarcely be required.
The duty which these principles devolve, not only upon every
officer, but every citizen, is that which Mr. Jefferson expressed
so compendiously in his first inaugural, namely:—“to support the
State Governments in all their rights as the most competent
administrations for their domestic concerns, and the surest
bulwarks against anti-republican tendencies,” combined with “the
preservation of the General Government in its whole constitutional
vigor as the sheet anchor of our peace at home and safety abroad.”
To the Chief Executive Magistrate of the Union is confided the
solemn duty of seeing the laws faithfully executed. That he may be
able to meet this duty with a power equal to its performance, he
nominates his own subordinates, and removes them at his pleasure.
For the same reason, the land and naval forces are under his
orders as their commander-in-chief. But his power is to be used
only in the manner prescribed by the legislative department. He
cannot accomplish a legal purpose by illegal means, or break the
laws himself to prevent them from being violated by others.
The acts of Congress sometimes give the President a broad
discretion in the use of the means by which they are to be
executed, and sometimes limit his power so that he can exercise it
only in a certain prescribed manner. Where the law directs a thing
to be done without saying how, that implies the power to use such
means as may be necessary and proper to accomplish the end of the
legislature. But where the mode of performing a duty is pointed
out by statute, that is the exclusive mode, and no other can be
followed. The United States have no common law to fall back upon
when the written law is defective. If, therefore, an act of
Congress declares that a certain thing shall be done by a
particular officer, it cannot be done by a different officer. The
agency which the law furnishes for its own execution must be used
to the exclusion of all others. For instance, the revenues of the
United States are to be collected in a certain way, at certain
established ports, and by a certain class of officers; the
President has no authority, under any circumstances, to collect
the same revenues at other places by a different sort of officers,
or in ways not provided for. Even if the machinery furnished by
Congress for the collection of the duties should by any cause
become so deranged or broken up that it could not be used, that
would not be a legal reason for substituting a different kind of
machinery in its place.
The law requires that all goods imported into the United States
within certain collection districts shall be entered at the proper
port, and the duty thereon shall be received by the collector
appointed for and residing at that port. But the functions of the
collector may be exercised anywhere at or within the port. There
is no law which confines him to the custom-house, or to any other
particular spot. If the custom-house were burnt down, he might
remove to another building; if he were driven from the shore, he
might go on board a vessel in the harbor. If he keeps within the
port, he is within the law.
A port is a place to which merchandise is imported, and from
whence it is exported. It is created by law. It is not merely a
harbor or haven, for it may be established where there is nothing
but an open roadstead, or on the shore of a navigable river, or at
any other place where vessels may arrive and discharge, or take in
their cargoes. It comprehends the city or town which is occupied
by the mariners, merchants, and others who are engaged in the
business of importing and exporting goods, navigating the ships
and furnishing them with provisions. It includes, also, so much of
the water adjacent to the city as is usually occupied by vessels
discharging or receiving their cargoes or lying at anchor and
waiting for that purpose.
The first section of the act of March 2, 1833, authorized the
President in a certain contingency to direct that the custom-house
for any collection district be established and kept in any secure
place within some port or harbor of such district, either upon
land or on board any vessel. But this provision was temporary, and
expired at the end of the session of Congress next afterwards. It
conferred upon the Executive a right to remove the site of a
custom-house not merely to any secure place within the legally
established port of entry for the district—that right he had
before—but it widened his authority so as to allow the removal of
it to any port or harbor within the whole district. The enactment
of that law, and the limitation of it to a certain period of time
now passed, is not, therefore, an argument against the opinion
above expressed, that you can now, if necessary, order the duties
to be collected on board a vessel inside of any established port
of entry. Whether the first and fifth sections of the act of 1833,
both of which were made temporary by the eighth section, should be
reënacted, is a question for the legislative department.
Your right to take such measures as may seem to be necessary for
the protection of the public property is very clear. It results
from the proprietary rights of the Government as owner of the
forts, arsenals, magazines, dock-yards, navy-yards, custom-houses,
public ships, and other property which the United States have
bought, built, and paid for. Besides, the Government of the United
States is authorized by the Constitution (Art. 1, Sec. 8) to
“exercise exclusive legislation in all cases whatsoever ..... over
all places purchased by the consent of the legislature of the
State in which the same shall be for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings.” It
is believed that no important public building has been bought or
erected on ground where the legislature of the State in which it
is, has not passed a law consenting to the purchase of it, and
ceding the exclusive jurisdiction. This Government, then, is not
only the owner of those buildings and grounds, but, by virtue of
the supreme and paramount law, it regulates the action and
punishes the offences of all who are within them. If any one of an
owner’s rights is plainer than another it is that of keeping
exclusive possession and repelling intrusion. The right of
defending the public property includes also the right of recapture
after it has been unlawfully taken by another. President Jefferson
held the opinion, and acted upon it, that he could order a
military force to take possession of any land to which the United
States had title, though they had never occupied it before, though
a private party claimed and held it, and though it was not then
needed nor proposed to be used for any purpose connected with the
operations of the Government. This may have been a stretch of
Executive power, but the right of retaking public property in
which the Government has been carrying on its lawful business, and
from which its officers have been unlawfully thrust out, cannot
well be doubted, and when it was exercised at Harper’s Ferry, in
October, 1859, everyone acknowledged the legal justice of it.
I come now to the point in your letter, which is probably of the
greatest practical importance. By the act of 1807, you may employ
such parts of the land and naval forces as you may judge necessary
for the purpose of causing the laws to be duly executed, in all
cases where it is lawful to use the militia for the same purpose.
By the act of 1795 the militia may be called forth “whenever the
laws of the United States shall be opposed, or the execution
thereof obstructed in any State by combinations too powerful to be
suppressed by the ordinary course of judicial proceedings, or by
the power vested in the marshals.” This imposes upon the President
the sole responsibility of deciding whether the exigency has
arisen which requires the use of military force; and in proportion
to the magnitude of that responsibility will be his care not to
overstep the limits of his legal and just authority.
The laws referred to in the act of 1795 are manifestly those which
are administered by the judges, and executed by the ministerial
officers of the courts for the punishment of crime against the
United States, for the protection of rights claimed under the
Federal Constitution and laws, and for the enforcement of such
obligations as come within the cognizance of the Federal
Judiciary. To compel obedience to these laws, the courts have
authority to punish all who obstruct their regular administration,
and the marshals and their deputies have the same powers as
sheriffs and their deputies in the several States in executing the
laws of the States. These are the ordinary means provided for the
execution of the laws; and the whole spirit of our system is
opposed to the employment of any other except in cases of extreme
necessity arising out of great and unusual combinations against
them. Their agency must continue to be used until their incapacity
to cope with the power opposed to them shall be plainly
demonstrated. It is only upon clear evidence to that effect that a
military force can be called into the field. Even then its
operations must be purely defensive. It can suppress only such
combinations as are found directly opposing the laws and
obstructing the execution thereof. It can do no more than what
might and ought to be done by a civil posse, if a civil posse
could be raised large enough to meet the same opposition. On such
occasions, especially, the military power must be kept in strict
subordination to the civil authority, since it is only in aid of
the latter that the former can act at all.
But what if the feeling in any State against the United States
should become so universal that the Federal officers themselves
(including judges, district attorneys and marshals) would be
reached by the same influences, and resign their places? Of
course, the first step would be to appoint others in their stead,
if others could be got to serve. But in such an event, it is more
than probable that great difficulty would be found in filling the
offices. We can easily conceive how it might become altogether
impossible. We are therefore obliged to consider what can be done
in case we have no courts to issue judicial process, and no
ministerial officers to execute it. In that event, troops would
certainly be out of place, and their use wholly illegal. If they
are sent to aid the courts and marshals, there must be courts and
marshals to be aided. Without the exercise of those functions
which belong exclusively to the civil service, the laws cannot be
executed in any event, no matter what may be the physical strength
which the Government has at its command. Under such circumstances,
to send a military force into any State, with orders to act
against the people, would be simply making war upon them.
The existing laws put and keep the Federal Government strictly on
the defensive. You can use force only to repel an assault on the
public property and aid the courts in the performance of their
duty. If the means given you to collect the revenue and execute
the other laws be insufficient for that purpose, Congress may
extend and make them more effectual to those ends.
If one of the States should declare her independence, your action
cannot depend upon the rightfulness of the cause upon which such
declaration is based. Whether the retirement of the State from the
Union be the exercise of a right reserved in the Constitution, or
a revolutionary movement, it is certain that you have not in
either case the authority to recognize her independence or to
absolve her from her Federal obligations. Congress, or the other
States in convention assembled, must take such measures as may be
necessary and proper. In such an event, I see no course for you
but to go straight onward in the path you have hitherto
trodden—that is, execute the laws to the extent of the defensive
means placed in your hands, and act generally upon the assumption
that the present constitutional relations between the States and
the Federal Government continue to exist, until a new code of
things shall be established either by law or force.
Whether Congress has the constitutional right to make war against
one or more States, and require the Executive of the Federal
Government to carry it on by means of force to be drawn from the
other States, is a question for Congress itself to consider. It
must be admitted that no such power is expressly given; nor are
there any words in the Constitution which imply it. Among the
powers enumerated in Article 1st, Section 8, is that “to declare
war, grant letters of marque and reprisal, and to make rules
concerning captures on land and water.” This certainly means
nothing more than the power to commence and carry on hostilities
against the foreign enemies of the nation. Another clause in the
same section gives Congress the power “to provide for calling
forth the militia,” and to use them within the limits of the
State. But this power is so restricted by the words which
immediately follow that it can be exercised only for one of the
following purposes: 1. To execute the laws of the Union; that is,
to aid the Federal officers in the performance of their regular
duties. 2. To suppress insurrections against the State; but this
is confined by Article IV, Section 4, to cases in which the State
herself shall apply for assistance against her own people. 3. To
repel the invasion of a State by enemies who come from abroad to
assail her in her own territory. All these provisions are made to
protect the States, not to authorize an attack by one part of the
country upon another; to preserve the peace, and not to plunge
them into civil war. Our forefathers do not seem to have thought
that war was calculated “to form a more perfect Union, establish
justice, insure domestic tranquility, provide for the common
defence, promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity.” There was undoubtedly a
strong and universal conviction among the men who framed and
ratified the Constitution, that military force would not only be
useless, but pernicious, as a means of holding the States
together.
If it be true that war cannot be declared, nor a system of
general hostilities carried on by the Central Government against
a State, then it seems to follow that an attempt to do so would
be _ipso facto_ an expulsion of such State from the Union. Being
treated as an alien and an enemy, she would be compelled to act
accordingly. And if Congress shall break up the present Union by
unconstitutionally putting strife and enmity and armed hostility
between different sections of the country, instead of the
domestic tranquility which the Constitution was meant to insure,
will not all the States be absolved from their Federal
obligations? Is any portion of the people bound to contribute
their money or their blood to carry on a contest like that?
The right of the General Government to preserve itself in its
whole constitutional vigor by repelling a direct and positive
aggression upon its property or its officers cannot be denied. But
this is a totally different thing from an offensive war to punish
the people for the political misdeeds of their State government,
or to enforce an acknowledgment that the Government of the United
States is supreme. The States are colleagues of one another, and
if some of them shall conquer the rest, and hold them as
subjugated provinces, it would totally destroy the whole theory
upon which they are now connected.
If this view of the subject be correct, as I think it is, then the
Union must utterly perish at the moment when Congress shall arm
one part of the people against another for any purpose beyond that
of merely protecting the General Government in the exercise of its
proper constitutional functions.
I am, very respectfully, yours, etc.,
J. S. BLACK.
The soundness of Mr. Black’s answers to the questions stated by the
President does not admit of a doubt. Those who have assailed him and
the President who acted upon his official advice, have done so with
very little regard to the supreme law of the land. They have not
perceived the path in which the President had to move in the coming
emergency, and they have overlooked the imperative obligation which
rested upon him not to assume powers with which he had not been
clothed by the Constitution and the laws. However certain it was
that South Carolina would undertake to place herself out of the pale
of the Union, no coercion could have been applied to her in her
political capacity as a State, to prevent her from taking that step,
without instantly bringing to her side every other State whose
sympathies were with her on the subject of slavery, however they
might hesitate in regard to secession as a remedy against the
apprehensions which were common, more or less, the people of the
whole slaveholding section. Even if the President had not been
restrained by this consideration, he had no constitutional power to
declare, no authority to prosecute, and no right to institute a war
against a State. He could do nothing but to execute the laws of the
United States within the limits of South Carolina, in case she
should secede, by such means as the existing laws had placed in his
hands, or such further means as the Congress which was about to
assemble might see fit to give him, and to maintain the possession
of the public property of the United States within the limits of
that State. What the existing means were, for either of those
purposes, was clearly pointed out by his official adviser, the
Attorney General. For the execution of the laws, these means might
wholly fail him, if the Federal civil officers in South Carolina
should renounce their offices and others could not be procured to
take their places. For maintaining possession of the public property
of the United States, he had to act wholly upon the defensive, and
at the same time he had no power to call for volunteers for this
purpose, and no military force within his reach but the five
companies of regular troops referred to by General Scott in his
“views” presented on the 30th of October, and the naval forces at
his command. No part of the army could be withdrawn from the
frontiers without leaving the settlers and the emigrants exposed to
the ravages of the Indians, even if the gravest reasons of public
policy had not forbidden such movements before Congress could take
into consideration the whole of the unprecedented and abnormal state
of the Union.
There is one part of Mr. Black’s opinion on which it is proper to
make some observations here, because it has a prospective bearing
upon the basis on which the civil war is to be considered to have
been subsequently prosecuted. It is not of much moment to inquire
how individual statesmen, or publicists, or political parties, when
the war had begun and was raging, regarded its legal basis; but it
is of moment, in reference to the correctness of the doctrine acted
upon by President Buchanan during the last four months of his
administration, to consider what was the true basis of that
subsequent war under the Constitution of the United States. The
reader has seen that Mr. Black, in his official opinion, not only
rejected the idea that the President could constitutionally make war
upon a State of his own volition, but that he did not admit that the
power to do so was expressly or implicitly given to Congress by the
Constitution. What then did the Attorney General mean by instituting
or carrying on war against one or more States? It is obvious, first,
that he meant offensive war, waged against a State as if it were a
foreign nation, to be carried on to the usual results of conquest
and subjugation; second, that he fully admitted and maintained the
right of the Federal Government to use a military force to suppress
all obstructions to the execution of the laws of the United States
throughout the Union, and to maintain the possession of its public
property. This distinction was from the first, and always remained,
of the utmost importance. It became entirely consistent with the
recognition, for the time being, of a condition of territorial civil
war, carried on by the lawful Government of the Union to suppress
any and all military organizations arrayed against the exercise of
its lawful authority; consistent with the concession of the
belligerent character to the Confederate government as a _de facto_
power having under its control the resources and the territory of
numerous States; consistent also with the denial to that government
of any character as a power _de jure_; and alike consistent with a
purpose to suppress and destroy it. So far as the war subsequently
waged was carried on upon this basis, it was carried on within the
limits of the Constitution, and by the strictest constitutional
right. So far as it was carried on upon any other basis, or made to
result in anything more than the suppression of all unlawful
obstructions to the exercise of the Federal authority throughout the
Union, it was a war waged outside of the Constitution, and for
objects that were not within the range of the powers bestowed by the
Constitution on the Federal Government. In a word, the Federal
Government had ample power under the Constitution to suppress and
destroy the Confederate government and all its military array, from
whatever sources that government or its military means were derived,
but it had no constitutional authority to destroy a State, or to
make war upon its unarmed population, as it would have under the
principles of public law to destroy the political autonomy of a
foreign nation with which it might be at war, or to promote
hostilities against its people.
Doubtless, as will be seen hereafter when I come to speak of that
part of the President’s message which related to this topic of
making war upon a State, the language made use of was capable of
misconstruction, and certain it is that it was made the subject of
abundant cavil, by those who did not wish that the President should
be rightly understood; as it was also made a subject of criticism by
the Attorney General when the message was submitted to the cabinet.
The language chosen by the President to express his opinion on the
nature and kind of power which he believed that the Constitution had
not delegated to Congress, described it as a “power to coerce a
State into submission which is attempting to withdraw, or has
actually withdrawn from the Confederacy.” This was in substance a
description of the same power which the framers of the Constitution
had expressly rejected. It was before the Convention of 1787 in the
shape of a clause “authorizing an exertion of the force of the whole
against a delinquent State,” which Mr. Madison opposed as “the use
of force against a State,” and which he said 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. On another occasion,
Mr. Madison said that “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 the [old] Congress.” When,
therefore, after the rejection of the idea of using force to
restrain a State from adopting an unconstitutional proceeding, the
framers of the Constitution proceeded to create a government endowed
with legislative, judicial and executive power over the individual
inhabitants of a State, and authorized it to use the militia to
execute the laws of the Union, they made and left upon our
constitutional history and jurisprudence a clear distinction between
coercing a State, in its sovereign and political character, to
remain in the Union, and coercing individuals to obey the laws of
the Union. Mr. Buchanan might then reasonably assume, that a
distinction thus clearly graven upon the constitutional records of
the country would be known and recognized by all men; and although
the expression to “coerce a State by force of arms to remain in the
Union,” might, if severed from the accompanying explanation of its
meaning, be regarded as ambiguous, it will be found hereafter that
it was not so used as to justify the inference that if a State were
to undertake to secede from the Union, the President would disclaim
or surrender the power to execute the laws of the Union within her
borders. It will be found also, by adverting to the Attorney
General’s answers to the President’s questions, that there was in
truth no real difference of opinion between them on this
subject.[74]
Footnote 74:
Mr. Jefferson Davis, who represents, with as much logical
consistency as any one, the whole of the doctrine or theory of
secession, has always maintained that the distinction between
coercing a State, and coercing the individual inhabitants of that
State to submit to the laws of the United States, is no
distinction at all: that the people of the State are the State;
and that to use a military force to execute the laws of the United
States upon individuals, within the limits of a State that has
seceded from the Union, is to make war upon the State. (See his
speech in the Senate, January 10, 1861, and his recent work on the
_Rise and Fall of the Confederate Government_. Index, _verb._
“Secession.”) Let us, for a moment, inquire whether Buchanan’s
distinction was answered “by reason of its very absurdity.” 1. The
States, in their corporate and political capacity, are not the
subjects or objects of Federal legislation. The legislative powers
of the Federal Constitution are not intended to be exercised over
States, but they are intended to be exercised over individuals. An
act of Congress never commands a State to do anything; it commands
private individuals to do a great many things. The States are
prohibited by the Constitution from doing certain things, but
these prohibitions execute themselves through the action of the
judicial power upon persons. No State can be acted upon by the
judicial power at the instance of the United States. Every
inhabitant of a State can be acted upon by the judicial power, in
regard to anything that is within the scope of the legislative
powers of the Constitution. 2. The coercion of individuals to
obey the laws of the United States constitutes the great
difference between our present Constitution and the Articles of
Confederation. 3. The right to use force to execute the laws of
the United States, by removing all obstructions to their
execution, not only results from the power to legislate on the
particular subject, but it is expressly recognized by the
Constitution. The character of that force and the modes in which
it may be employed, depend both on direct constitutional
provision, and on the legislative authority over all the people of
the United States in respect to certain subjects and relations.
All this will be conceded to be true, so long as a State remains
in the Union. Does it cease to be true, when a State interposes
her sovereign will, and says that the laws of the United States
shall not be executed within her limits, because she has withdrawn
the powers which she deposited with the General Government? What
does this make, but a new case of obstruction to the execution of
the Federal laws, to be removed by acting on the individuals
through whom the obstruction is practically tried? And if, in the
removal of the obstruction, the use of military power becomes
necessary, is war made upon the State? It is not, unless we go the
whole length of saying that the interposition of the sovereign
will of the State _ipso facto_ makes her an independent power,
erects her into a foreign nation, and makes her capable of being
dealt with as one enemy is dealt with by another. To deny the
right of the United States to execute its laws, notwithstanding
what is called the secession of a State, is to impale one’s self
upon the other horn of the dilemma: for if that right does not
exist, it must be because the State has become absolutely free and
independent of the United States, and may be made a party to an
international war. Mr. Buchanan saw and constantly and
consistently acted upon the true distinction between making war
upon a State, and enforcing the laws of the United States upon the
inhabitants of a State.