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.