Mr Buchanan's Administration on the Eve of the Rebellion Chapter VIII
by James Buchanan
We have already seen that Congress, throughout the entire
session, refused to adopt any measures of compromise to prevent
civil war, or to retain first the cotton or afterwards the border
States within the Union. Failing to do this, and whilst witnessing the secession of one after another of the cotton States,
the withdrawal of their Senators and Representatives, and the
formation of their Confederacy, it was the imperative duty
of Congress to furnish the President or his successor the
means of repelling force by force, should this become necessary
to preserve the Union. They, nevertheless, refused to perform
this duty with as much pertinacity as they had manifested in
repudiating all-measures of compromise.
1. At the meeting of Congress a Federal Judiciary had
ceased to exist in South Carolina. The District Judge, the District Attorney, and the United States Marshal had resigned
their offices. These ministers of justice had all deserted their
posts before the act of secession, and the laws of the United
States could no longer be enforced through their agency. We
have already seen that the President, in his message, called the
attention of Congress to this subject, but no attempt was made
in either House to provide a remedy for the evil.
2. Congress positively refused to pass a law conferring on
the President authority to call forth the militia, or accept the
services of volunteers, to suppress insurrections which might
occur in any State against the Government of the United States.
It may appear strange that this power had not long since been
vested in the Executive. The Act of February 28, 1795,1 the
only law applicable to the subject, provides alone for calling
forth the militia to suppress insurrections against State Governments, without making any similar provision for suppressing
insurrections against the Government of the United States. If
any thing were required beyond a mere inspection of the act to
render this clear, it may be found in the opinion of Attorney-
General Black, of the 20th November, 1860. Indeed it is a plain
casus omissus. This palpable omission, which ought to have
been instantly supplied, was suffered to continue until after the
en; of Mr. Buchanan's administration, when on the 29th July,
1861, Congress conferred this necessary power on the President.2
The framers of the Act of 1795 either did not anticipate an
insurrection within any State against the Federal Government,
or if they did, they purposely abstained from providing for it.
Even in regard to insurrections against a State Government, so
jealous were they of any interference on the part of the Federal
Government with the rights of the States, that they withheld
from Congress the power to protect any State "against domestic violence," except "on the application of the Legislature, or
of the Executive (when the Legislature cannot be convened)."
Under the Act of 1795, therefore, the President is precluded
from acting even upon his own personal and absolute knowledge
of the existence of such an insurrection. Before he can call
forth the militia for its suppression, he must first be applied to
for this purpose by the appropriate State authorities, in the
manner prescribed by the Constitution. It was the duty of
Congress, immediately after their meeting, to supply this defect
in our laws, and to confer an absolute authority on the President to call forth the militia, and accept the services of volunteers, to suppress insurrections against the United States, whenever or wherever they might occur. This was a precautionary
measure which, independently of existing dangers, ought long
since to have formed a part of our permanent legislation. But
no attempt was ever made in Congress to adopt it until after
the President's special message of the 8th January, 1861, and
then the attempt entirely failed. Meanwhile the aspect of public affairs had become more and more threatening. Mr. Crittenden's amendment had been defeated before the Committee
of Thirteen, on the last day of December; and it was also highly
probable that his proposition before the Senate to refer it to a
vote of the people of the States, would share the same fate.
South Carolina and Florida had already seceded, and the other
cotton States had called Conventions for the purpose of seceding.
Nay, more, several of them had already seized the forts, magazines, and arsenals within their limits. Still all this failed to
produce any effect upon Congress. It was at this crisis the
President sent his special message to Congress (8th January,
1861), by which he endeavored to impress them with the necessity for immediate action. He concealed nothing from them.
Whilst still clinging to the fading hope that they might yet provide for a peaceful adjustment of our difficulties, and strongly
recommending this course, he says: "Even now the danger is
upon us. In several of the States which have not yet seceded,
the forts, arsenals, and magazines of the United States have
been seized. This is by far the most serious step which has
been taken since the commencement of the troubles. * * *
The seizure of this. property, from all appearances, has been
purely aggressive, and not in resistance to any attempt to coerce
a State or States to remain in the Union." He also stated the
well-known fact that our small army was on the remote frontiers, and was scarcely sufficient to guard the inhabitants against
Indian incursions, and consequently our forts were without sufficient garrisons.
1. 1 Stat. at Large, p. 424
2. 12 U. S. Stat. at Large, p. 281.
Under these circumstances he appeals to Congress in the following language: "But the dangerous and hostile attitude of
the States toward each other has already far transcended and cast
in the shade the ordinary executive duties already provided for
by law, and has assumed such vast and alarming proportions as
to place the subject entirely above and beyond executive control
The fact cannot be disguised that we are in the midst of a great
revolution. In all its various bearings, therefore, I commend
the question to Congress, as the only human tribunal, under
Providence, possessing the power to meet the existing emergency.
To them exclusively belongs the power to declare war, or to
authorize the employment of military force in all cases contem-
plated by the Constitution; and they alone possess the power to
remove grievances which might lead to war, and to secure peace
and union to this distracted country. On them, and on them
alone, rests the responsibility."
Congress might, had they thought proper, have regarded the
forcible seizure of these forts and other property, including that
of the Branch Mint at New Orleans with all the treasure it contained, as the commencement of an aggressive war. Beyond
question the cotton States had now committed acts of open hostility against the Federal Government. They had always contended that secession was a peaceful constitutional remedy, and
that Congress had no power to make war against a sovereign
State for the purpose of coercing her to remain in the Union.
They could no longer shelter themselves under this plea. They
had by their violent action entirely changed the position they
had assumed; and instead of peacefully awaiting the decision
of Congress on the question of coercion, they had themselves become the coercionists and assailants. This question had, therefore, passed away. No person has ever doubted the right or the
duty of Congress to pass laws enabling the President to defend
the Union against armed rebellion. Congress, however, still
shrunk from the responsibility oft passing any such laws. This
might have been commendable had it proceeded from a sincere
desire not to interpose obstacles to a compromise intended to prevent the effusion of fraternal blood and restore the Union. Still
in any event the time had arrived when it was their duty to
make at the least contingent provisions for the prosecution of the
war, should this be rendered inevitable. This had become the
more necessary as Congress would soon expire, and the new Congress could not be convened for a considerable period after the
old one had ceased to exist, because a large portion of the Rep-
resentatives had not then been elected. These reasons, however,
produced no effect.
The President's special message1 was referred, two days after
its date (10th January), by the House of Representatives to a
special committee, of which Mr. Howard, of Michigan, was
chairman. Nothing was heard from this committee for the
space of twenty days. They then, on the 30th January, through
Mr. John H. Reynolds, of New York, one of its members, reported a bill2 enabling the President to call forth the militia or to
accept the services of volunteers for the purpose of protecting
the forts, magazines, arsenals, and other property of the United
States; and to "recover possession" of such of these as "has
been or may hereafter be unlawfully seized or taken possession
of by any combination of persons whatever." Had this bill become a law, it would have been the duty of the President at
once to raise a volunteer or militia force to recapture the forts
which had been already seized. But Congress was not then
prepared to assume such a responsibility. Mr. Reynolds accordingly withdrew his bill from the consideration of the House on
the very day it was reported. On his own motion it was recommitted, and thus killed as soon as it saw the light. It was never
heard of more.
1. Con. Globe, p. 816.
2. Ibid., p. 645, bills of H. R., No. 698.
Then, after another pause of nineteen days, and only a fortnight before the close of the session, the Committee on Military
Affairs, through Mr. Stanton, of Ohio, their chairman, on the
18th February reported another bill on the subject,1 but of a
more limited character than that which had been withdrawn. It
is remarkable that it contains no provision touching the recovery
of the forts and other property which had been already seized by
the delinquent States. It did no more than provide that the
powers already possessed by the President, under the Act of
1795, to employ the militia in suppressing insurrections against
a State Government, should be "extended to the case of insurrections against the authority of the United States,"with the
additional authority to "accept the services of such volunteers
as may offer their services for the purpose mentioned." Thus
all hostile action for the recovery of the forts already seized was
excluded from the bill. It is difficult to conceive what reasonable objection could be made to this bill, except that it did not
go far enough and embrace the forts already seized; and more
especially as when it was reported we may recollect that the
Confederate Congress had already been ten days in session at
Montgomery, Alabama, and had adopted a Provisional Constitution. Notwithstanding all this, the House refused to act upon
it. The bill was discussed on several occasions until Tuesday,
26th February. On that day a motion was made by Mr. Corwin, of Ohio, to postpone its consideration until Thursday, the
28th February.2 Mr. Stanton, the reporter of the bill, resisted
this motion, stating that such a postponement would be fatal to
it. "It will," said he, "be impossible after that to have it
passed by the Senate" (before the 4th March). He, therefore,
demanded the ayes and noes; and notwithstanding his warning,
Mr. Corwin's motion prevailed by a vote of 100 to 74, and thus
the bill was defeated.
1. Ibid., p. 1001, bill 1003, H. R.
2. Con. Globe, 1232.
It may be proper to observe that Mr. Corwin, whose motion
killed the bill, was a confidential friend of the President elect,
then present in Washington, and was soon thereafter appointed
minister to Mexico.
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 flull, 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 fbr the defence of the Government against
armed rebellion. Congress not onlyrefused 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 eollector 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 had 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
MlcIntire, 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, 1861,1 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,2 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.
1. Con. Globe, p. 236, bills H. R., No. 910.
2. H. Journal, p. 465
The 36th Congress expired on the 3d March, 1861, leaving
the law just as they had 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.
Urgent and dangerous emergencies may have arisen, or may
hereafter arise in the history of our country, rendering delay
disastrous, such as the bombardment of Fort Sumter by the
Confederate Government, which would for the moment justify
the President in violating the Constitution, by raising a military
force without the authority of law, but this only during a recess
of Congress. Such extreme cases are a law unto themselves.
They must rest upon the principle that it is a lesser evil to
usurp, until Congress can be assembled, a power withheld from
the Executive, than to suffer the Union to be endangered, either
by traitors at home or enemies from abroad. In all such cases,
however, it is the President's duty to present to Congress, immediately after their next meeting, the causes which impelled him
thus to act, and ask for their approbation; just as, on a like
occasion, a British minister would ask Parliament for a bill of
indemnity. It would be difficult, however, to conceive of an
emergency so extreme as to justify or even excuse a President
for thus transcending his constitutional powers whilst Congress,
to whom he could make an immediate appeal, was in session.
Certainly no such case existed during the administration of the
late President. On the contrary, not only was Congress actually
in session, but bills were long pending before it for extending
his authority in calling forth the militia, for enabling him to
accept the services of volunteers, and for the employment of the
navy, if necessary, outside of ports of entry for the collection
of the revenue, all of which were eventually rejected. Under
these circumstances, had the President attempted, of his own
mere will, to exercise these high powers, whilst Congress were
at the very time deliberating whether to grant them to him or
not, he would have made himself justly liable to impeachment.
This would have been for the Executive to set at defiance both
the Constitution and the legislative branch of the Government.