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 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 on the statute book, bearing upon 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 abodes within a limited time.” This duty cannot 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 solid 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 cannot be amended so as to carry out more effectually the objects of the Constitution.
The same insuperable obstacles do not lie in the way of executing the laws for the collection of the customs. The revenue still continues to be collected, as heretofore, at the custom-house in Charleston, and should the collector unfortunately resign, a successor may be appointed to perform this duty.
Then, in regard to the property of the United States in South Carolina. This has been purchased, for a fair equivalent, “by the consent of the legislature of the State,” “for the erection of forts, magazines, arsenals,” etc., and over these the authority “to exercise exclusive legislation,” has been expressly granted by the Constitution to Congress. It is not believed that any attempt will be made to expel the United States from this property by force; but if in this I should prove to be mistaken, the officer in command of the forts has received orders to act strictly on the defensive. In such a contingency the responsibility for consequences would rightfully rest upon the heads of the assailants.
Apart from the execution of the laws, so far as this may be practicable, the Executive has no authority to decide what shall be the relations between the Federal Government and South Carolina. He has been invested with no such discretion. He possesses no power to change the relations heretofore existing between them, much less to acknowledge the independence of that State. This would be to invest a mere executive officer with the power of recognizing the dissolution of the Confederacy among our thirty-three sovereign States. It bears no resemblance to the recognition of a foreign de facto government, involving no such responsibility. Any attempt to do this would, on his part, be a naked act of usurpation. It is, therefore, my duty to submit to Congress the whole question in all its bearings. 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 on 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 actually 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 an 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, 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 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. Suppose such a war should result in the conquest of a State, how are we to govern it afterwards? Shall we hold it as a province and govern it by despotic power? In the nature of things we could not, by physical force, control the will of the people and compel them to elect Senators and Representatives to Congress, and to perform all the other duties depending upon their own volition, and required from the free citizens of a free State as a constituent member of the Confederacy.
But, if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would banish all hope of its peaceful reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence?