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Congress, described it as a “power to coerce a State into submission which is attempting to withdraw, or has actually withdrawn from the Confederacy.”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]]
CHAPTER XVI.
1860—December.
THE PRESIDENT'S ANNUAL MESSAGE OF DECEMBER 3, 1860.
The Constitution makes it the duty of the President, from time to time, to give to the Congress information of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient. Custom has made the commencement of each session of Congress a regular occasion for the discharge of this duty, and has also established the propriety of performing it at other times, whenever the President deems it necessary. It was the purpose of this provision of the Constitution to make the President a special guardian of the interests of the Union, by making him the official witness of its condition to the legislative department, and by giving to his recommendation of measures a high claim upon its consideration. The performance of this duty involves a wide range of observation over the whole condition of the country at a given time, and it imposes upon Congress the correlative duty of giving serious heed and prompt attention to any recommendations which the President may make. No other functionary in the Government is in a position to know so well as the President what the interests of the Union from time to time demand at the hands of Congress, and no other is clothed with this power of making official and therefore weighty recommendations of measures requiring legislative action. No state of parties, no objects of party policy, can excuse the individual members of a Congress from the duty of giving immediate attention to whatever suggestions the President may make in the exercise of this great function as the constitutional adviser of the legislature, and as guardian of the interests of the Union. At the same time, it is to be remembered that this function is only an advisory one; that it in no way enlarges the powers of the Executive; and that the President can at no time exercise any powers but those with which he has been clothed by the Constitution or by the laws which have been passed in pursuance of its provisions.
Never was there an occasion when it was more necessary that this duty should be performed by the President firmly, intelligibly, boldly, conscientiously, than it was in the crisis existing at the commencement of the session of Congress in December, 1860. Never was it more imperatively necessary that Congress should at once take into its “consideration” the measures recommended by the President. The force of that term, as it is used in the Constitution, is not limited to a mere reference of the President’s recommendations to committees. It implies action, prompt and decisive action, one way or the other, in proportion to the gravity of that condition of the Union which the President has brought to the attention of the Legislature. The President is entitled to know, and to know speedily, whether the Congress concurs with or differs from him. The country is entitled to know whether its Chief Magistrate is to be clothed with the further powers for which he may have asked in order to meet a given emergency; whether the Congress accepts, or refuses to accept, his construction of the Constitution in regard to new and difficult questions that have arisen; and whether, if the Congress does not concur with the President, it has any other policy to propose and carry out, adequate to the dangers that may be impending over the Union. An examination of the course of President Buchanan in the crisis to which we have now arrived conducts to the inquiry whether he performed his duty, as he should have done, and whether the Congress performed theirs according to the obligation that rested upon them.
The “state of the Union,” of which the President had to give Congress official information, was entirely unprecedented. That it was alarming, cannot be doubted. It matters little whether the people of the North felt much alarm. Popular opinion, so far as it was not manifested by the depression of business and of the public funds, did not reflect the gravity of the crisis. It was not generally believed that an election of a President, conducted in a regular and orderly manner, although it had resulted in the triumph of a party obnoxious to the feelings of the Southern people, because of its supposed hostility to them, would be or could be made the occasion for a permanent disruption of the Union. And this was about the only aspect in which the popular mind of the North regarded the whole matter for a considerable period after the election. It was not generally perceived that an entirely new question had arisen, which made a peril of a new and formidable nature. The alleged constitutional right of a State to withdraw itself from the Union, on its own judgment that its interests or safety were no longer compatible with its continuing as a member of it, although it had long been theoretically discussed in many ways by individuals of more or less importance, was now about to be asserted and acted upon by the people of South Carolina. How was this crisis to be met? That it was entirely out of all previous experience, that it was a situation full of peril, that it entailed the consideration of questions of Federal power never yet solved, because they had never before arisen, was plain. That the President of the United States, the official sentinel on the great watch-tower of the Union, regarded its condition as one of imminent danger, was enough for the Congress to know. That popular opinion in the North did not fully comprehend the danger affords no excuse for any omission of duty, any lack of wisdom or forethought, any failure to act promptly or patriotically, which history may find reason to impute to those who held the legislative power.
Mr. Buchanan, as the reader has seen, so soon as he had reason to believe that South Carolina was about to put in practice its alleged right of withdrawing from the Union, proceeded to take the opinion of his official adviser in regard to his constitutional powers and duties in such an emergency. Individually, he needed no man’s advice upon such questions, for he was as able and well instructed a constitutional jurist as any one who had ever filled the office of President of the United States; familiar with all the teachings and all the precedents of his predecessors, and abundantly learned in the doctrines of the great judicial expounders of the Constitution. But in his official capacity it was both proper and necessary that he should call to his aid the sound judgment and the copious learning of his Attorney General, before proceeding to discharge his constitutional duty of giving to Congress information of the state of the Union. He began to prepare his annual message immediately after he had received the Attorney General’s answers to his questions. The message was read to the cabinet before it was printed in the usual form for communication to Congress. The members of the cabinet, including General Cass, the Secretary of State, and with the exceptions of Mr. Cobb, Secretary of the Treasury, and Mr. Thompson, Secretary of the Interior, warmly and emphatically approved of it.[[75]] Messrs. Cobb and Thompson objected to so much of the message as denied the right of secession, and to that part of it which maintained the duty of defending the public property and collecting the revenue in South Carolina. These questions having now become vital, the two dissenting members of the cabinet, soon after the message had been sent to Congress, resigned their places.[[76]]
Let it be remembered, then, that this message was prepared to be submitted to Congress before the South Carolina Convention had adopted its ordinance of secession. Surely, therefore, there can be no just ground for imputing to the President any lack of preparation to meet the threatened contingency of a secession of one or more States, according to the measure of his official duty and powers. In examining this message, of which I shall speak in conformity with my most serious convictions, the reader should note that it had to be prospective in its recommendations, in order that Congress might be fully possessed of the methods of action which the President intended to propose as the legitimate, as well as the expedient, course to be pursued. But this was not the whole of the constitutional duty that rested upon the Executive. He had, in discharging his duty of giving to Congress information of the state of the Union, to treat so far of the causes which had brought about that condition as to point out measures of conciliation, as well as measures for the exercise of authority. He had to recognize the palpable fact that the two sections of the Union, the slaveholding and the non-slaveholding States, stood divided from each other upon a question which involved more of feeling than of practical consequence; a feeling that had been aggravated on each side into an undue importance by the circumstances of the late election. This question related to the claim of Southern slaveholders to have their right of property in slaves recognized in Territories of the United States, whenever they should go there with such property. It was a claim which the most considerate of those who asserted it most strongly regarded as essential to the equality of their States as members of the Union, in reference to the right of occupation of the common property of all the States. It was based, to be sure, by many who asserted it, upon a questionable proposition, which was that the right of property in a slave, recognized by the local law of a State, travelled with the person of the owner into a Territory of the United States, without any law of the Territory to uphold it, and even against a prohibition imposed by the legislative authority which governed the Territory. But when has it been known in the history of conflicting popular feelings, that the nature of such a claim has diminished the fervor with which it has been defended, when it has come to be regarded as a great political right, of importance to those who assert it? Practically, it was not a matter of importance to the slaveholding States, because there was no Territory of the United States at that time in which slave labor could become profitable, or in which the negro, in a state of slavery, could thrive. But an exaggerated feeling of the political importance of this supposed right had taken possession of the Southern mind. On the other hand, there had come about in the North an equally exaggerated sense of the importance of asserting in every possible form of public action, that the Territories were dedicated to freedom from slavery, and were to be so regarded forever. It was chiefly upon this, as a fundamental principle of the future legislation of the Union, that the Republican candidate had been elected by the votes of the people of the free States.
Under these circumstances, no President of the United States, in discharging his constitutional duty of giving to Congress information of the state of the Union, could have avoided a reference to this condition of conflicting sectional feelings and determinations, especially at a moment when one of the Southern States was about to act upon the assumption that the election of the Northern candidate evinced a hostile disposition in the North towards the people and the social institutions of the South, too dangerous to be disregarded. If, by fairly holding the balance between the two sections, President Buchanan could suggest any course of conciliation and compromise that could be adopted without impairing the authority of the Federal Government or weakening its rights, it was his duty to point it out. The adoption of such a course by Congress would certainly smooth the way for President Lincoln, because it would leave South Carolina alone in her attitude of secession, would tend with great force to prevent any of the other cotton States from following her example, and would render a civil war extremely improbable, because it would remove one great cause for the spread of secession beyond the borders of that State. When the recommendation of the message is examined with impartiality, it will be found that it proposed an explanatory amendment of the Constitution which was entirely reasonable, and which would have terminated the existing dissensions, so far as they depended upon this particular question.
But those dissensions had other causes, which it was equally the duty of the President to bring before Congress and the country. For a long period of time, the anti-slavery agitation in the North, not confined to the question of slavery in the Territories, had awakened apprehensions in the South for their domestic peace and safety. It was undoubtedly but reasonable to expect the Southern people to rely on the conservative force of Northern public opinion, to guard against interference with slavery in the States by any form of public action through the General Government, by whatever party it might be administered. But who could insure them against the consequences of such lawless acts as John Brown’s “raid” into Virginia, undertaken in 1859, with the avowed purpose of producing a slave insurrection? This occurrence, which was only a little more than a twelvemonth old when Mr. Buchanan prepared his annual message of December 3, 1860, had produced a sadder impression on the Southern people against the Union than any previous event had ever caused.[[77]] This painful impression was deepened by the popular honors paid in the North to this man’s memory as a martyr in the cause of liberty, for whom the prayers of churches were offered, and who, after he had died the death of a felon, was canonized as a saint, mouldering in the body in the grave, but in spirit marching on to the accomplishment of his mission of liberator of the slaves. Such fanaticism might well be regarded with serious alarm by a people who dwelt surrounded in every relation of life by a slave population of another race, in many communities outnumbering the Whites. Yet this was not all that tended to alienate the people of the South from the Union. A provision of the Constitution which was adopted by its framers as a fundamental condition of the new Union that it aimed to establish, for the execution of which legislation had been provided in 1793,—legislation which bore the name of Washington himself, and which had been amended and strengthened in 1850 by a solemn Congressional agreement,—had been for seven years resisted by combinations of individuals in the North, and by State laws of obstruction that had no less of nullification as their spirit and purpose than the nullifying ordinance of South Carolina, by which she formerly undertook to obstruct another law of the Union. It was impossible for the Southern People not to place this resistance to the extradition of fugitive slaves among their grievances. It was a real grievance, and one that, considering the nature of the Constitutional mandate and stipulation, it was right that they should complain of.