But even had Congress passed this bill, it would have proved wholly inefficient for want of an appropriation to carry it into effect. The Treasury was empty; but had it been full, the President could not have drawn from it any, even the most trifling sum, without a previous appropriation by law. The union of the purse with the sword, in the hands of the Executive, is wholly inconsistent with the idea of a free government. The power of the legislative branch to withhold money from the Executive, and thus restrain him from dangerous projects of his own, is a necessary safeguard of liberty. This exists in every government pretending to be free. Hence our Constitution has declared that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.” It is, therefore, apparent that even if this bill had become a law, it could not have been carried into effect by the President without a direct violation of the Constitution.
Notwithstanding these insuperable obstacles, no member of either House, throughout the entire session, ever even proposed to raise or appropriate a single dollar for the defence of the Government against armed rebellion. Congress not only refused to grant the President the authority and force necessary to suppress insurrections against the United States, but the Senate, by refusing to confirm his nomination of a collector of the customs for the port of Charleston, effectually tied his hands and rendered it impossible for him to collect the revenue within that port. In his annual message he expressed the opinion that “the same insuperable obstacles do not lie in the way of executing the [existing] laws for the collection of customs on the seaboard of South Carolina as had been interposed to prevent the administration of justice under the Federal authority within the interior of that State.” At all events he had determined to make the effort with the naval force under his command. He trusted that this might be accomplished without collision; but if resisted, then the force necessary to attain the object must be applied. Accordingly, whilst informing Congress “that the revenue still continues to be collected as heretofore at the custom house in Charleston,” he says that “should the collector unfortunately resign, a successor may be appointed to perform this duty.” The collector (William F. Colcock) continued faithfully to perform his duties until some days after the State had seceded, when at the end of December he resigned. The President, immediately afterwards, on the 2d January, nominated to the Senate, as his successor, Mr. Peter McIntire, of Pennsylvania, a gentleman well qualified for the office. The selection could not have been made from South Carolina, because no citizen of that State would have accepted the appointment. The Senate, throughout their entire session, never acted upon the nomination of Mr. McIntire; and without a collector of customs duly appointed, it was rendered impossible for the President, under any law in existence, to collect the revenue.
But even if the Senate had confirmed Mr. McIntire’s nomination, it is extremely doubtful whether the President could lawfully have collected the revenue against the forcible resistance of the State, unless Congress had conferred additional powers upon him. For this purpose Mr. Bingham, of Ohio, on the 3d January, 1861,[[153]] the day after Mr. McIntire’s nomination to the Senate, reported a bill from the Judiciary Committee, further to provide for the collection of duties on imports. This bill embraced substantially the same provisions, long since expired, contained in the Act of 2d March, 1833, commonly called “the Force Bill,” to enable General Jackson to collect the revenue outside of Charleston, “either upon land or on board any vessel.” Mr. Bingham’s bill was permitted to slumber on the files of the House until the 2d March, the last day but one before Congress expired,[[154]] when he moved for a suspension of the rules, to enable the House to take it up and consider it, but his motion proved unsuccessful. Indeed, the motion was not made until so late an hour of the session that even if it had prevailed, the bill could not have passed both Houses before the final adjournment. Thus the President was left both without a collector of customs, and most probably without any law which a collector could have carried into effect, had such an officer existed. Mr. Bingham’s bill shared the fate of all other legislative measures, of whatever character, intended either to prevent or to confront the existing danger. From the persistent refusal to pass any act enabling either the outgoing or the incoming administration to meet the contingency of civil war, it may fairly be inferred that the friends of Mr. Lincoln, in and out of Congress, believed he would be able to settle the existing difficulties with the cotton States in a peaceful manner, and that he might be embarrassed by any legislation contemplating the necessity of a resort to hostile measures.
The 36th Congress expired on the 3d March, 1861, leaving the law just as they found it. They made no provision whatever for the suppression of threatened rebellion, but deliberately refused to grant either men or money for this purpose. It was this violation of duty which compelled President Lincoln to issue a proclamation convening the new Congress, in special session, immediately after the attack on Fort Sumter.[[155]]
It is proper to state that President Lincoln did not accord to the Montgomery Commissioners any official reception as representatives of an independent government. But as will hereafter appear, his Secretary of State, Mr. Seward, through the intervention of distinguished persons in Washington, held much informal intercourse with them in regard to the evacuation of Fort Sumter, the result of which was that the commissioners left Washington believing, or professing to believe, that they had been duped by a promise to withdraw the troops, which had not been fulfilled, but, on the contrary, that secret preparations were making by Mr. Lincoln’s government to send reinforcements. This has always been assigned as the excuse for the attack on Fort Sumter.[[156]]
CHAPTER XXIV.
1861—February and March.
COMMISSIONERS FROM THE CONFEDERATE GOVERNMENT—MR. JEFFERSON DAVIS’S STATEMENT THAT THEY WERE INVITED BY PRESIDENT BUCHANAN CALLED IN QUESTION.
It is now my duty to examine a statement made by Mr. Jefferson Davis in his recent work, to the effect that Confederate commissioners were appointed and sent to Washington from Montgomery, partly, at least, in consequence of a suggestion made to him by President Buchanan. The statement is in these words: “It may here be mentioned, in explanation of my desire that the commission, or at least a part of it, should reach Washington before the close of Mr. Buchanan’s term, that I had received an intimation from him, through a distinguished Senator of one of the border States,[[157]] that he would be happy to receive a commissioner or commissioners from the Confederate States, and would refer to the Senate any communication that might be made through such a commission.”[[158]]
This intimation, if it was ever made, was, as Mr. Davis describes it, that the President would himself receive a diplomatic agent or agents from the Confederate States, and would, as is the customary and constitutional course on extraordinary occasions, consult the Senate, not Congress, upon any communication that such agent or agents might desire to make. Mr. Davis, although he names Mr. Hunter, of Virginia, as the person through whom he received this intimation, quotes no letter or telegram from that gentleman; so that a judgment cannot be formed upon the character of this alleged intimation. There is not the least trace among Mr. Buchanan’s private papers of his ever having made to Mr. Hunter such a suggestion in writing. If it was made orally—considering his habit of keeping memoranda of important conversations, especially with the Southern Senators—it is highly probable that he would not have omitted to record this one. No such memorandum has been found after the most diligent search. One is left, therefore, to the probabilities of the case, which are all against the correctness of Mr. Davis’ statement. No imputation is here made upon Mr. Davis’ veracity; but it evidently requires something more in the nature of proof than anything he has given, to justify the belief that President Buchanan ever expressed his willingness to receive commissioners from the Confederate States, to negotiate with the diplomatic department of the Government for a peaceable acknowledgment of the independence of those States. The mere reception of such commissioners and a reference of their communication to the Senate, would have been tantamount to an admission that the Confederate government could be treated with as an independent power.
1. In the letter addressed by Mr. Davis to the President, dated on the 27th of February, 1861, and which he describes in his book as “of a personal and semi-official character,” introducing Mr. Crawford, the first commissioner to arrive in Washington, and asking for him “a favorable reception corresponding to his station,” he did not in any manner signify that he was sending Mr. Crawford to Washington in compliance with an intimation which he, Mr. Davis, had received from Mr. Buchanan. This he would naturally have said, in such a personal letter, if he at that time was acting upon such an intimation from Mr. Buchanan, because it would have been an unanswerable ground on which to ask for a favorable reception of the commissioner. The appeal ad hominem would not have been left out of such a letter.