Lives of Distinguished North Carolinians, with Illustrations and Speeches

by Unknown

It is no wonder that Congress, when it did assemble, in July, 1861, and found war a fact accomplished and armies already threatening Washington, should have made haste to validate the President's high-handed measures and strengthen his precarious position by an act of which section three is as follows: "That all the acts, proclamations, and orders, of the President of the United States, after the 4th of March, 1861, respecting the army and navy of the United States, and the calling out, or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid to the same intent and with the same effect as if they had been issued and done under previous express authority and direction of the Congress of the United States." The marginal note of the printed laws points this act specially to the proclamation of April 15, 1861, calling out the militia.

In suppressing the Whiskey Insurrection Washington acted under the "previous express authority of Congress," then lately given, "cautiously in his delicate duty," while Hamilton "was pressing for the collection of the revenue," says history. The act under which the militia was then called out, passed in 1792, required a Federal judge to certify the fact of the insurrection, and Washington took care to arm himself with the certificate of a Supreme Court Justice. The act under which Lincoln proceeded, an epitome of the former, shows on its face that it was also, when in force, in aid exclusively of court proceedings, and operative only when a Federal judge should call upon the President to assist the United States Marshals, who were purely court officers. Any other construction gives the President "the power to suppress insurrections," and the "power to declare war"; and, when war is declared the Constitution places him in command of the army and militia: so nothing would be left for Congress but to vote supplies and validate his acts, as it did Lincoln's usurpations!

Though the militia had often been needed, and sometimes called out for troubles, domestic and foreign, no President of the United States, until Lincoln, had ever issued such a call unless expressly authorized by Congress, in special acts of limited duration, which have usually specified the number of troops wanted and the term of service required. It is no wonder then that an act, treated as a dead letter since the suppression of the Whiskey Insurrection, should have been marked "obsolete" by the government publisher, with the sanction of Congress.

Unless Madison's refusal to recommend a policy of coercion against the New England States, successfully resisting the drafts for the defense of the nation in the War of 1812, be regarded as a precedent, Lincoln had but one, directly in point, and that was furnished by President Jackson in the case of South Carolina's nullification of Federal law in 1832. Jackson's zeal for the Union could not be doubted; and, in spite of his military training and arbitrary temper, he found a remedy which saved the Union without bloodshed.

On December 10, 1832, after South Carolina had nullified the tariff act, proceeded to provide a separate government, notified the President, and begun to arm and organize its militia for defense, Jackson issued a proclamation in which he besought, and threatened, and promised. Failing by such means to induce the tariff-plundered planters of the plucky little State to recede from their position, on the assembling of Congress he recommended the removal of the cause of the trouble, expressing his belief that such action would shortly put an end to resistance. Nullification still continuing, Jackson (a month later) wrote his famous message, in which he called attention to the magnitude of the opposition, and recommended to Congress to provide by law: "That in case of an attempt otherwise [than by process from the ordinary judicial tribunals of the United States] to take property [from the custody of the law] by a force too great to be overcome by the officers of the customs, it should be lawful to protect the possessions of the officers by the employment of the land and naval forces and militia under provisions similar to those authorized by the eleventh section of the Act of January 9, 1809." After recommending the revival of other expired acts to facilitate and protect the collection of the revenues and execution of Federal law, he said further: "Provisions less than these—consisting, as they do, for the most part, rather of a revival of the policy of former acts called for by the [then] existing emergency, than of the introduction of any unusual or rigorous enactments—would not cause the laws of the Union to be properly respected or enforced. It is believed that these would prove adequate unless the military forces of the State of South Carolina, authorized by the late act of the Legislature, should be actually embodied and called out in aid of their proceedings, and of the provisions of the ordinance generally. Even in that case, however, it is believed that no more will be necessary than a few modifications of its terms to adapt the Act of 1795 to the present emergency, as by that act the provisions of the Act of 1792 were accommodated to the crisis then existing; and, by conferring authority upon the President, to give it operation during the session of Congress, and without the ceremony of a proclamation, whenever it shall be officially made known to him by the authority of any State, or by the courts of the United States, that, within the limits of such State, the laws of the United States will be openly opposed and their execution obstructed by the actual employment of military force, or by any unlawful means, whatever, too great to be otherwise overcome."

Pursuant to these recommendations, Congress passed, March 2, 1833, the "force bill," or "bloody bill," as it was called; and the section which made it infamous in the unprotected States was as follows: "Sec. 5. And be it further enacted, that whenever the President of the United States shall be officially informed by the authorities of any State, or by a judge of any Circuit or District Court of the United States in the State, that within the limits of such State any law or laws of the United States, or the execution thereof, or of any process from the courts of the United States is obstructed by the employment of military force, or by any other unlawful means too great to be overcome by the ordinary course of judicial proceedings or by the power vested in the marshals by existing laws, it shall be lawful for him, the President of the United States, forthwith to issue his proclamation declaring such fact or information, and requiring all such military or other force forthwith to disperse; and if, at any time after issuing such proclamation, any such opposition or obstruction shall be made in the manner or by the means aforesaid, the President shall be and hereby is authorized promptly to employ such means to suppress the same, and to cause said laws or process to be duly executed, as are authorized and provided in the cases therein mentioned by the Act of the 28th of February, 1795, entitled: 'An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, repel invasions, and repeal the act now in force for that purpose'; and also, by the Act of the 3d of March, 1807, entitled: 'An act authorizing the employment of the land and naval forces of the United States in cases of insurrection.'" Section 1 of the force bill authorized the President to call out the army, navy, and militia to aid in collecting the customs—a power which the Act of 1795 could not be construed to give. It was also provided in the act that the operation of said sections 5 and 1 should "continue until the next session of Congress, and no longer." Thus careful was Congress to limit the duration of the great powers delegated to the President, as it had usually done in other instances in which it had authorized the employment of military force. The Act of March 3, 1807, referred to in the force bill, simply gave the President authority to use the land and naval forces of the United States to assist in the execution of the laws whenever it should be lawful for him to call out the militia for the same purpose. The Act of 1795, referred to by Jackson, which he did not pretend he had a right to use against the nullifiers of the tariff act, unless it should be revived by Congress, and which he proposed should be revived, modified, and adapted to meet the emergency confronting him, in the same way Congress had formerly adapted and modified the Act of 1792 by the Act of 1795, to meet the emergency of the latter year, was the very act Lincoln used to cover his assumption of power to make war on the South without the authority of Congress! He had this precedent before him, in which the warrior Jackson, swift in defense of the nation's honor against her foreign foes, was slow to dye his hands in his brothers' blood. He had before him the act in which Congress had revived the provisions of the Act of 1795, and expressly limited the duration of that revival to the time intervening before its next session; and he was lawyer enough to know, though not learned in his profession, that the substantial reenactment and enlargement of the old act, and its repeal, or limitation to a definite period, was, after the expiration of that period, a practical repeal of both—especially when it may be seen that the one was to take the place the other took in its day. See Tynen vs. The United States, 11 Wallace U. S. Reports, page 88; Pana vs. Bowles, 107 U. S. Reports, page 529, and cases cited therein; Norris vs. Crocker, 13 Howard, page 429.

Jackson, in spite of his camp association and military methods, was the embodiment of caution and conservatism, when compared to Lincoln and his "kitchen cabinet" of revenue-hunting Governors, who were as swift to declare war against their own people, under a forced construction of an old, unused, obsolete, special act, as those who now speculate in their names and fame are eager to seek treaties of partnership with our hereditary foreign foe.

They shall never, unchallenged, teach our children that Abraham Lincoln's usurpations were lawful, justified by necessity, or commended by God; lest "necessity, the plea of tyrants," or "divine right," the plea of kings and priests, or "implied powers," the plea of those who are powerful only to oppress the people and to collect and spend their revenues, should constitute the excuse for destroying the remaining safeguards of our liberties.

Those accustomed to analyze motive and conduct will note with attention that the Act of August 6, 1861, intended to legalize the call for troops, was passed after the "force bill" had been reenacted and amplified by the Acts of July 13, 29, and 31, 1861—after the President had been expressly authorized by these acts and another to accept the service of volunteers and to use the army, navy, and militia to make war upon States and combinations of States, as well as upon the inhabitants of districts therein—after Congress had in these acts twice gone out of its way to refer to the old Act of 1795 as still in force, and once expressly treated it as giving the authority, which had been assumed, to begin the war; and the legalizing act itself was covered under a caption which was calculated to excite as little attention as possible. The caption reads: "An act to increase the pay of privates in the regular army and in the volunteers, and for other purposes."