What, in the meantime, is the responsibility and true position of the Executive? He is bound by a solemn oath before God and the country "to take care that the laws are faithfully executed;" and from this obligation he cannot 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 upon the Statute Book bearing on this subject are those of the 28th February, 1795, and 3d March, 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 homes 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 sole 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 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 upon 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 virtually 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 the 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, founded upon 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.
VIII.
PROCLAMATION OF AUGUST 16, 1861, PURSUANT TO ACT OF CONGRESS OF JULY 13, 1861.