Abbildungen der Seite
PDF
EPUB

firmed in that Constitution; therefore if Congress shall undertake to say that a man's slave is no longer his slave, when he crosses a certain line into a Territory, that is depriving him of his property without due process of law, and is unconstitutional." There is the whole Dred Scott decision. They add that if Congress cannot do so itself, Congress cannot confer any power to do so, and hence any effort by the Territorial Legislature to do either of these things is absolutely decided against. It is a foregone conclusion by that court.

Now, as to this indirect mode by "unfriendly legislation,” all lawyers here will readily understand that such a proposition cannot be tolerated for a moment, because a legislature cannot indirectly do that which it cannot accomplish directly. Then I say any legislation to control this property, as property, for its benefit as property, would be hailed by this Dred Scott Supreme Court, and fully sustained; but any legislation driving slave property out, or destroying it as property, directly or indirectly, will most assuredly, by that court, be held unconstitutional. ..

CHAPTER XLIX

SECESSION AND COERCION

THE annual message of President Buchanan in 1860 was drafted in the well-founded expectation that the convention summoned by the legislature of South Carolina would adopt an ordinance of secession. Advised by Attorney-General Black, the President interpreted narrowly his powers under the Act of 1795 and chose to stand simply on the defensive, leaving Congress to pursue the traditional, but now ineffectual, policy of compromise. On December 20, the convention of South Carolina repealed the ordinance by which it had ratified the Federal Constitution, and four days later declared to the world the causes which had brought about this momentous step. True to its theory of the Union, the convention dispatched commissioners to Washington to wind up the affairs of the partnership, styled the United States of America, from which the State had withdrawn.

143. Opinion of Attorney-General Black upon the Powers

[ocr errors]
[ocr errors]

of the President.1

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 shall 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

1 November 20, 1860. McPherson, Political History of the United States of America during the Great Rebellion, 51-52.

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. . .

144. President Buchanan's Message of December 3, 1860.1 . . . 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

1 Richardson, Messages and Papers of the Presidents, v, 630-36 passim.

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 Government.

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..

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 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 á 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

« ZurückWeiter »