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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.
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