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characterized by a wisdom and devotion to country which did not fail to give him the confidence and respect of all classes in the loyal States to an extraordinary degree. When the hour came for the tocsin to sound, he found party affinities obliterated, prejudices forgotten, animosities buried; all true men seemed ready for, and confident in, his leadership.

The Federal Policy as Announced to England and France.

The course to be pursued had been enunciated in the

Inaugural Message. It was repeated in the proclamation of April 15th, and further indicated in all instructions issued by Mr. Seward to our foreign ministers. In his communication (November 2d) to Mr. Adams, dated April 10th, the Secretary of State entered into a somewhat elaborate exposition of the causes and nature of the revolution. In his clearly enunciated instructions to the minister, he said, among other things:

"You will make no admissions of weakness in our Constitution, or any apprehensions on the part of the Government. You will rather prove, as you easily can, by comparing the history of our country with that of other states, that its Constitution and Government are really the strongest and surest which have ever been erected for the safety of any people. You will in no case listen to any suggestions of compromise by this Government, under foreign auspices, with its discontented citizens. If, as the President does not at all apprehend, you shall unhappily find her Majesty's Government tolerating the application of the so-called seceding States, or wavering about it, you will not leave them to suppose for a moment that they can grant that appli

cation and remain the friends of the United States. You may even assure them promptly, in that case, that, if they determine to recognize, they may, at the same time, prepare to enter into alliance with the enemies of this Republic."

In note, (No. 10,) May 21st, the Secretary advises Mr. Adams of our rights to blockade in these terms:

"As to the blockade, you will say that by our own laws and the laws of nature, and the laws of nations, this Government has a clear right to suppress insurrection. An exclusion of commerce from national ports which have been seized by insurgents, in the equitable form of blockade, is a proper means to that end. You will not insist that our blockade is to be respected, if it be not maintained by a competent force; but passing by that question as not

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vice of the insurgents, and we shall dismiss or demand the recall of every foreign agent, consular or diplomatic, who shall either disobey the Federal laws or disown the Federal authority."

In the same note he also throws the full

responsibility of war upon Great Britain if it shall recognize the Southern Confederacy as a de facto Government. He said:

"We are not insensible of the grave importance of this occasion. We see how, upon the result of the debate in which we are engaged, a war may ensue between the United States and one, two, or even more European nations. War in any case is as exceptional from the habits as it is revolting from the sentiments of the American people. But if it come it will be fully seen that it results from the action of Great Britain, not our own; that Great Britain will have decided to fraternize with our domestic enemy either without waiting to hear from you our remonstrances and our warnings, or after having heard them. War in defense of national life is not immoral, and war in defense of independence is an inevitable part of the discipline of nations."

This position was sustained in every communication to Mr. Adams, relating to the rights and powers of the United States.

In the instructions to Mr. Dayton, Minister to France, we have even more decided expressions. He said:

"The President neither expects nor desires any intervention, or even any favor, from the Govern ment of France, or any other, in this emergency. Whatever else he may consent to do, he will never invoke nor even admit foreign interference or influ ence in this or any other controversy in which the Government of the United States may be engaged with any portion of the American people. It has been simply his aim to show that the present controversy furnishes no one ground on which a great and friendly power, like France, can justly lend aid or sympathy to the party engaged in insurrection, and therefore he instructs you to insist on the prac tice of neutrality by the Government of the Emperor, as all our representatives are instructed to insist on the neutrality of the several powers to which they are accredited.

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ANNOUNCEMENT

OF

THE FEDERAL

POLICY.

187

The Federal Policy as tionary party, and to carry on Announced to Eng- the war against them as eneland and France. mies. The case would not be relieved, but, on the contrary, would only be aggravated, if several European states should combine in that intervention. The President and the people of the United States deem the Union, which would then be at stake, worth all the cost and all the sacrifice of a contest with the world in arms, if such a contest should prove inevitable."

The note (No. 7) of May 4th embodies the views of the Administration, evolved and matured by the extraordinary precipitancy and decision of those in revolt. We quote the Secretary's words, as declaring the President's line of procedure as well as his policy

toward the revolutionists :

"In the unofficial conversation, Mr. Faulkner says

that he himself expressed the opinion that force would not be resorted to to coerce the so-called seceding States into submission to the Federal authority, and that the only solution of the difficulty would be found in such modifications of the constitutional compact as would invite the seceding States back into the Union, or a peaceable acquiescence in the assertion of their claim to a separate sovereignty.

The

The time when these questions had any pertinency or plausibility has passed away. United States waited patiently while their authority was defied in turbulent assemblies, and in seditious preparations, willing to hope that mediation, offered on all sides, would conciliate and induce the disaffected parties to return to a better mind.

"But the case is now altogether changed. The insurgents have instituted revolution with open, flagrant, deadly war to compel the United States to acquiesce in the dismemberment of the Union. The United States have accepted this civil war as an inevitable necessity. The constitutional remedies for all the complaints of the insurgents are still open to them, and will remain so. But, on the other hand, the land and naval forces of the Union have been put into activity to restore the Federal authority and to save the Union from danger. "You cannot be too decided or too explicit in making known to the French Government that there is not now, nor has there been, nor will there be any the least idea existing in this Government of suffering a dissolution of this Union to take place in any way whatever.

"There will be here only one nation and one Government, and there will be the same Republic, and the same constitutional Union that have already survived a dozen national changes, and changes of

Government in almost every other country. These will stand hereafter, as they are now, objects of human wonder and human affection.

"You have seen, on the eve of your departure, the elasticity of the National spirit, the vigor of the National Government, and the lavish devotion of the National treasures to this great cause. Tell Mr. Thouvenel, then, with the highest consideration and good feeling, that the thought of a dissolution of this Union, peaceably or by force, has never entered

into the mind of any candid statesman here, and it is high time that it be dismissed by statesmen in

Europe."

If the President proposed, up to April 30th,* only the "defense of the Capital," his policy was so far modified, after that date, that "defense" implied the exercise of all the' powers of the Government, offensive as well as defen

sive, to suppress the insurrection. By May 1st it became apparent that insurrection had developed into a war of conquest-that Maryland, Tennessee, Kentucky and Missouri were to be invaded to secure their advent into the Southern Confederacy. Then Mr. Seward was constrained to write: "The time when these questions (of peace and compromise) had any pertinency or plausibility has passed away." There followed (May 3d) the second requisition for troops, [see page 141,] and a campaign was developed upon a scale commensurate with the full employment of the vast force. The "suppression of the insurrection" was then understood to imply a full trial of force with the insurrectionists.

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Provisions and Non-
Provisions of the
Constitution.

cover.

Jackson's Assump

tion.

Jackson enunciated this opinion of his right of construction of the Constitution, even against the dictum of the Supreme Court or of Congress :

"Congress, the Executive and the Court must,

each for itself, be guided by its own opinion of the Constitution. Each public officer who takes an

oath to support the Constitution, swears that he will support it as he understands it, and not as it is under

stood by others. It is as much the duty of the House of Representatives, of the Senate and of the Presi dent, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision."

Reverdy Johnson, commenting on this doctrine, said its correctness had never been questioned that, to hold otherwise, would be to attach superiority of one over the other co-ordinate authorities in the Governmentthat the President, if he abandoned the right of personal judgment and suffered himself to be governed by the judgment of any co-ordinate authority, would be false to his duty and would do anything but fulfill his “constitutional obligation" to "take care that the laws be faithfully executed."

The framers of the Con. stitution never contemplated a state of civil war; therefore they did not legislate for it. They assumed the supremacy of Federal authority in all National relations, defining the powers of the General Government and of the States, and stipulating for the exercise, without conflict of jurisdiction and authority, of the functions of each. The whole tone, tenor and letter of the Constitution express the one central principle of consolidation; and, by no word or implication is the State regarded as independent of, or superior to, the Federal Government. Provision was not made for conditions and contingencies not considered as likely to arise; hence, in more than one case, during the progress of the country, has the Executive, or the Supreme Court, been called to meet issues created by circumstances which the Constitution did not explicitly The accession of the Louisiana Territory was regarded by Jefferson as actually unconstitutional; but, the interests of the country so clearly demanded the purchase that it was made during his administration. Washington, in calling out troops to suppress the Whisky insurrection, exceeded his authority and relied upon Congress to justify his acts. Numerous instances could be cited wherein the Executive, and even Congress, pursued a course of action either extra-judicial or in contravention of recognized opinions and precedents. A forcible illustration was had in President Jackson's celebrated declaration: "Then I will assume the respon- John Merryman, a leading secessionist of sibility"-when his constitutional advisers Baltimore, was arrested, together with a numall questioned the propriety of his proposed ber of others, including, eventually, the Chief procedure against the malcontents in South of Police and the Police Commissioners, Carolina. The strong-nerved man, it is now These persons were confined in Fort McHenry, stated, had resolved upon the arrest of under the military surveillance of General John C. Calhoun for high treason, and would | Cadwalader. The process of relief by a writ have hung him, (as conviction must have followed the arrest,) had not Webster, Clay and others personally begged a suppression of the process to await further legislation and development of the Nullification rebellion.*

*Calhoun was elected Vice-President of the United States on the Jackson ticket, but resigned in order to take his place in the Senate as a floor memberthus to labor for disunion the more effectually. As Vice-President he would not have dared to commit

Without entering upon the argument of the constitutional powers of the Executive, we are called upon, in an exposition of the policy of the Federal Executive, to advert to his grounds of justification for acts deemed unconstitutional, or extra-constitutional, and therefore arbitrary.

the treasonable acts which he seriously contem plated. Jackson's anger that his own coadjutor should have proven false to the Union doubtless had much to do in impelling him to extreme measures against Calhoun. Those scrupulous politicians who beheld a great wrong in the nomination and election of two Northern men to the offices of President and Vice-President, in 1860, forgot to recur to the cases of Jackson and Calhoun, in 1832, when two Southern men of extreme Southern views were chosen.

JUDGE TANEY'S OPINION.

cording to law.

189

Judge Taney's
Opinion.

"I forebore yesterday to state orally the provi sions of the Constitution of the United States, which

make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it. I shall, therefore, put my opinion in writing and file it in the office of the Clerk of the Circuit Court, in the course of this week."

of habeas corpus was resort- | dicial authority and subject to Suspension of the Privileges of the Habeas ed to by the friends of the its control; and if the party is Corpus Act. prisoners; and, that the is- arrested by the military, it is sue thus created might bring the military authe duty of the officer to deliver him over immethority before the highest civil tribunal,* diately to the civil authority, to be dealt with acChief-Justice Taney, of the United States Supreme Court, was called upon to issue the writ. The writ was issued May 25th, returnable at noon, May 27th, in the United States District Court of Baltimore, Judge Taney on the bench. At the hour named Colonel Lee appeared in behalf of General Cadwalader, and stated that Merryman was charged with treason, and that, in his case, by authority of the President, the privilege of the writ was suspended. The General asked that the Court would, however, postpone action until further instructions were received. The Judge immediately ordered the arrest of the General for disobedience to the high writ of the Court. The attachment was made returnable the next day, When that hour arrived an immense concourse was present to hear the Marshal make return that, on proceeding to the Fort, he was refused admittance by armed sentinels, and therefore could not serve the writ of arrest upon General Cadwalader. The Chief Justice thereupon read a statement as follows:

at noon.

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The Judge further added that the military authority was always subordinate to the civil. That, under ordinary circumstances, it would be the duty of the Marshal to proceed with a posse comitatus, and bring the party named in the writ into Court; but, from the notoriously superior force that he would encounter, this would be impossible. He said the Marshal had done all in his power to discharge his duty-that, during the week, he should prepare his opinion in the premises, and forward it to the President, calling upon him to perform his constitutional duty, and see that the laws be faithfully executed and enforce the decrees of this Court.

This opinion we give at length in the Appendix, together with the counter-opinion of the U. S. Attorney-General upon which, it is presumable, the President places his chief reliance for legal defense, for the arrest and imprisonment of those " suspected" persons whom the Government, by orders from the War or State Departments, placed in close confinement in the forts of Baltimore, Boston and New York. We should add, however, that the loyal sentiment of the country condemned the direct issue created by the ChiefJustice, while the disloyal and “conservative" approved. Whether or not Mr. Lincoln acted within the province of the Constitution,* in

* It is somewhat singular that Judge Taney, in uttering his elaborate opinion against the right of military arrests, should have forgotten his previous record, and thus have laid himself liable to charges of inconsistency. In delivering the opinion of the Supreme Court of the United States, January Term, 1849, in the case of Luther agt. Borden et al. (7 Howard's Sup. Ct. Rep., 43), on writ of error from the Circuit Court for the Rhode Island District, in a

the arrests, the people de-rately justify or condemn, Courts and ConJudge Taney's cided that he had acted for gress must do likewise as the constituted Opinion. the good of the country, in organs of the people. Before the people, circumstances of danger which only extreme acting in unity and expressing a general senmeasures could avert. And this, we think, timent, even Courts and Congress must give will be his surest defense. Throwing aside the way; and if, in the Constitution, there clearly ifs and wherefores of legal tomes, the people existed the right of a State to secede, it is who are at once their own lawgivers and questionable if the exercise of that right would judges, by virtue of their Constitution-strike not have been forbidden by the popular will direct at the heart of wrongs; as they delibe- of the majority, whose pride of country and patriotism would not consent to a division of the Union. Had the right of secession been conceded by Congress, it must have been overruled by the people. In both cases the ballot-box would have been the umpire, and the "American idea" would have found votes as powerful as bayonets in deciding upon unity and the rights of the majority. It was this "tyranny" against which the South protested; and the President, as the embodiment of the popular will of the North, received the anathemas of all who acted

case of trespass q. c. by Martin Luther, a citizen of Massachusetts, against the defendants, citizens of Rhode Island, for breaking and entering the house of Luther on the 29th June, 1842, Mr. Chief-Justice Taney said:

"This case had arisen out of the unfortunate political dif

ferences' which agitated the people of Rhode Island in 1841 and 1842. It is an action of trespass by the plaintiff in error against defendants for breaking and entering plaintiff's house. The defendants justify upon the ground that large numbers of men were assembled in different parts of the State, for the purpose of overthrowing the Government by military force, and were actually levying war upon the State; that in order to defend itself from this insurrection, the State was

declared by competent authority under martial law; that with or had sympathy for the secession

movement.

The Assumed Right

plaintiff was engaged in the in urrection; and that the defendants, being in the military service of the State, by comThe questions involved mand of their superior officer, broke and entered the house, and searched the rooms for the plaintiff, who was supposed in and covered by the mat- of Coercion. to be there concealed, in order to arrest him, doing as little ters already submitted, damage as possible.

*

"Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every Government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other Government. The State

itself must determine what degree of force the crisis demands. And if the Government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout

the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this Court can question its authority. It was a state of war; and the established Government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable

grounds to believe was engaged in the insurrection; and might

order a house to be forcibly entered and searched, when there were rea onable grounds for supposing he might be there con cealed. Without the power to do this, martial law and the

military array of the Government would be mere parade, and rather encourage attack than repel it. No more force, how

meet several of the propositions mentioned on the previous page. The right of coercion was measurably involved in the right to call out troops to suppress an insurrection, which was covered by the Acts of 1795 and 1807. In the opinion of Attorney-General Black, [cited on pages 66-69 of Vol. I,] the position taken was, that the military was subordinate to the civil process, and could only be called into requisition to aid the courts in enforcing the laws. It confessed, however, that, in case the civil power itself should refuse to cooperate to execute the laws, Congress must then take such steps as were necessary and proper. It may be assumed that, what already has been said of the popular right to meet great perils by original processes, also applies here. If the President did not find direct or implied authority in the Constitu

ever, can be used, than is necessary to accomplish the object. And if the power is exercised for the purposes of option, or in the Acts of 1795 and 1807, for pression, or any injury willfully done to persons or property,

the party by whom, or by whose order it is committed, would undoubtedly be answerable," &c.

The President might simply appeal to this decision for his justification. Those desiring to canvass the whole question should refer to this case.

calling out troops to suppress the rebellion, the people came to his justification. The endorsement and confirmation Congress gave (by the Act of July, 1861) to each and all the steps taken by the President, to meet the

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