The Attorney-General's Opinion. the land and naval forces as you | difficulty would be found in fil- The Attorney-Gen- "The laws referred to in the act of 1795 are manifestly those which are administered by the judges and executed by the ministerial officers of the courts for the punishment of crime against the United States, for the protection of rights claimed under the Federal Constitution and laws, and for the enforcement of such obligations as come within the cognizance of the Federal Judiciary. To compel obedience to these laws, the courts have authority to punish all who obstruct their regular administration, and the marshals and their deputies have the same power as sheriffs and their deputies in the several States, in executing the laws of the States. These are the ordinary means provided for the execution of the laws, and the whole spirit of our system is opposed to the employment of any other except in cases of extreme necessity, arising out of great and unusual combinations against them. Their agency must continue to be used until their incapacity to cope with the power opposed to them shall be plainly demonstrated. It is only upon clear evidence to that effect that a military force can be called into the field. Even then its operations must be purely defensive. It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof. It can do no more than what might and ought to be done by a civil posse, if a civil posse could be raised large enough to meet the same opposition. On such occasions, especially, the military power must be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all. "But what if the feeling in any State against the United States should become so universal that the Federal officers themselves (including judges, district attorneys, and marshals,) would be reached by the same influences and resign their places? Of course the first step would be to appoint others in their stead, if others could be got to serve. But, in such an event, it is more than probable that great courts and marshals to be aided. Without the exercise of those functions, which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government has at its command. Under such circnmstances, to send a military force into any State with orders to act against the people would be simply making war upon them. "The existing laws put and keep the Federal Gov. ernment strictly on the defensive. You can use force only to repel an assault on the public proper ty, and aid the courts in the performance of their duty. If the means given you to collect the revenuo, and execute the other laws, be insufficient for that purpose, Congress may extend and make them more effectual to that end. "If one of the States should declare her independence, your action cannot depend upon the rightfulness of the cause upon which such declaration is based. Whether the retirement of a State from the Union be the exercise of a right reserved in the Constitution, or a revolutionary movement, it is certain that you have not in either case the authority to recognize her independence or to absolve her from her Federal obligations. Congress, or the other States, in convention assembled, must take such measures as may be necessary and proper. In such an event I see no course for you but to go straight onward in the path you have hitherto trodden; that is, execute the laws to the extent of the defensive means placed in your hands, and act generally upon the assumption that the present constitutional relations between the States and the Federal Government continue to exist until a new order of things shall be established, either by law or force. Whether Congress has the Constitutional right to make war against one or more States, and require the Executive of the Federal Government to carry it on by means of force to be drawn from the other States, is a question for Congress itself to consider. It must be admitted that no such power is expressly given; nor are there any words in the Constitution which imply it. Among the powers enumerated in Article I. section 8, is that 'to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water.' This certainly means nothing more than the power to com The Attorney-Gen eral's Opinion. THE ACTION OF THE SOUTHERN STATES. mence and carry on hostilities against the foreign enemies of the nation. Another clause in the same section gives Congress the power to provide for calling forth the militia,' and to use them within the limits of the State. But this power is so restricted by the words which immediately follow, that it can be exercised only for one of the following purposes: 1. To execute the laws of the Union; that is, to aid the Federal officers in the performance of their regular duties. 2. To suppress insurrections against the States; but this is confined by Art.. IV, sec. 4, to cases in which the State herself shall apply for assistance against her own people. 3. To repel the invasion of a State by enemies who come from abroad to assail her in her own territory. All these provisions are made to protect the States, not to authorize an attack by one part of the country upon another; to preserve their peace, and not to plunge them into civil war. Our forefathers do not seem to have thought that war was calculated to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.' There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious as a means of holding the States together. "If it be true that war cannot be declared, nor a system of general hostilities carried on by the Central Government against a State, then it seems to follow that an attempt to do so would be ipse facto an 69 The Attorney-Goneral's Opinion expulsion of such State from the Union. Being treated as an alien and an enemy, she would be compelled to act accordingly. And if Congress shall break up the present Union by unconstitutionally putting strife, and enmity, and armed hostility between different sections of the country, instead of the domestic tranquillity' which the Constitution was meant to insure, will not all the States be absolved from their Federal obligations? Is any portion of the people bound to contribute their money or their blood to carry on a contest like that? "The right of the General Government to preserve itself in its whole constitutional vigor by repelling a direct and positive aggression upon its property or its officers cannot be denied. But this is a totally different thing from an offensive war to punish the people for the political misdeeds of State Governments, or to prevent a threatened violation of the Constitution, or to enforce an acknowledgment that the Government of the United States is supreme. The States are colleagues of one another, and if some of them shall conquer the rest and hold them as subjugated provinces, it would totally destroy the whole theory upon which they are now connected. "If this view of the subject be as correct as I think it is, then the Union must utterly perish at the moment when Congress shall arm one part of the people against another for any purpose beyond that of merely protecting the General Government in the exercise of its proper constitutional functions. "I am, very respectfully, yours, &c., "J. S. BLACK. "To the President of the United States." CHAPTER IX. ACTION OF THE SOUTHERN STATES, UP TO DECEMBER 10TH Affairs in South Carolina. On the evening of November 30th, a large manded as belonging to meeting was held in Charleston, at which South Carolina, as the the Hon. C. G. Meminger foreshadowed the quota she was entitled to course to be pursued by the State. He said draw from the broken copartnership; that if that within three days after the Convention said forts and property were not duly given came together, (Dec. 17th,) South Carolina up and quitclaimed, the armed men of South would be declared out of the Union; that a Carolina would take them. This they stood Commissioner would be sent to Washington ready to do at any moment. It was what to treat concerning the forts and other Fede- they would do as surely as they were not ral property, which would be formally de-given up. Should the General Government undertake to garrison the forts with soldiers, South Carolina would act first; her young men, eager for the time to come, would be there before the Federal Government, prepared to bid defiance to it. Mr. Buchanan, he thought, would not interfere offensively; his term of office was so nearly expired that he would not assume the responsibility. The General Government was, therefore, taken at great disadvantage, and, for that reason, the time was very favorable for the State. Mr. Lincoln, he contended, would be powerless for a while. The Force bill was spent by limitation: Congress would not pass another; the incoming President would experience great difficulty in organizing the Government in all its departments, in finding men who would do his will or execute the laws; and much time would consequently elapse before the Government, even if the purpose existed, would be in a situation to attempt coercion on South Carolina. By that time, her sister Cotton States would be alongside of her. Of that he was quite confident. South Carolina would not be left to fight her battles alone. Mr. Meminger concluded his address by exhorting the people to be prepared for the inevitable change. The Legislature, at that very moment, was preparing the sinews of war, and success was certain, if the people were united in heart and hand. What is notable in regard to this speech is the quiet air of authority which it assumed; and the fact that the steps prescribed by the speaker were taken almost to the letter, demonstrates how fully the movement was under the control of very few sagacious leaders. The State Legislature, as Mr. M. stated, was maturing the ways and means for the change, even to the perfection of an independant postal and telegraph system, which was expected to produce an immediate revenue to the State. In the course of remarks made in the Legislature by Mr. Rhett, on the establishment of an Ordnance Bureau, (Dec. 4th,) he stated that there had been, for several years, in Charleston, eight of the largest size Paixhan guns, which might, perhaps, be used in taking the forts. Mr. Marshall said the State had 382 infantry companies, 50 cavalry, 19 artillery, and 62 rifle companies, making 121 battalions, 56 regiments, 14 brigades, and 5 divisions. Mr. McGowan said the total military force was 65,000. The House passed the bill to provide an armed military force without opposition, Dec. 4th. It authorized the Government to call into service 10,000 volunteers. December 2d another large meeting assembled in front of the Charleston Hotel. In the course of his remarks the Mayor made important announcements. Among other things he said:-"I congratulate you that everything looks so cheering. We have news from Georgia that she has bound her emblem with ours across the Savannah River. We have news from Florida that her Governor has said that, at every hazard, she must sever her connection with her faithless confederates. Mississippi and Alabama are ready. And we have bright hopes from the old State of North Carolina. Fellow-citizens, the Aborigines of this country of ours used to worship the rising sun. I tell you that we, too, have a rising sun to venerate, and that is the rising sun of a Southern Confederacy. I think I see the gray of the morning of the rising of that sun. With this Union of our sister States, it is certain to rise." The election for delegates to the Convention was held December 5th. It passed off quietly, as the people were unanimous in feeling the only contest being the preferences expressed for particular persons—all of whom were, of course, committed to secession. December 7th, Governor Gist sent in his last Message. He exhorted to immediate and separate action. South Carolina. He said: "The delay of the Convention for a single week to pass the Ordinance of Secession will have a blighting and chilling influence upon the action of the other Southern States. The opponents of the movement everywhere will be encouraged to make another effort to rally their now disorganized and scattered forces to defeat our action and stay our onward march. Fabius conquered by delay, and there are those of bis school, though with a more unworthy purpose, who, shrinking from open and manly attack, use this vail to hide their deformity, and from a masked battery to discharge their mis siles. But I trust they will strike the armor of truth and fall harmless at our feet, and that by the 28th of December no flag but the Palmetto will float over any part of South Carolina." THE ACTION OF THE SOUTHERN STATES. 71 The total vote in Charleston City on Dele- In Alabama, among other gates was 3,721, given to twenty-two candi- features of the time, may dates. The vote, being a very full one, show-be mentioned the formaed that the number of persons in the city of lawful age, subject to military duty, was but little over three thousand. Alabama. tion of "Committees of Public Safety," similar to the "Vigilance Associations" of South Carolina, viz. :—"To take care that the public peace and safety be not endangered; to arrest or remove from the county all danger Matters did not remain in a quiet state, during the last week of November and the first week of December, throughout the Cot-ous and suspicious persons; to bring them ton States. The volcano of public opinion was rumbling everywhere in their borders, indicative of the coming explosion. The Governor of Florida, in his message to the Legislature of that State, November 26th, assumed the right and necessity of immediate secession. Among other things, he said: tion. "I will not insult your intelFlorida for Precipita- ligence or trespass on your patience by recounting the aggressions already perpetrated, or by referring to those that must follow our submission. For myself, in full view of the responsibility of my position, I most decidedly declare that, in my opinion, the only hope the Southern States have for domestic peace and safely, or for future respectability and prosperity, is dependent on their action now; and that the proper action is-Secession from our faithless, perjured confederates. "But some Southern men, it is said, object to secession until some overt act of unconstitutional power shall have been committed by the General Government; that we ought not to secede until the President and Congress unite in passing an act unequivocally hostile to our institutions, and fraught with immediate danger to our rights of property and to our domestic safety. My countrymen! if we wait for such an overt act, our fate will be that of the white inhabitants of St. Domingo. "But why wait for this overt act of the General Government? What is that Government? It is but the trustee, the common agent of all the States, appointed by them to manage their affairs according to a written constitution or power of attorney. Should the sovereign States, then-the principals and the partners in the association-for a moment tolerate the idea that their action must be graduated by the will of their agents? The idea is preposterous." United States Senator Yulee, of Florida, communicated from Washington, under date of November 29th, to the Legislature of his State, his desire to "promptly and joyously return home to support the banner of the State" when the day should be named for her secession. before the proper officers of law, as the public interest may require; to organize and sustain an efficient patrol." A meeting of the citizens of Baldwin County, November 24th, to organize one. of these Committees, passed a unanimous resolution against secession, "unless a majority of the Slaveholding States concur; but, if the State does secede, we will heartily go with her." United States Senator Clay, of Alabama, tendered his resignation December 10th, to take effect March 4th, unless Alabama should sooner secede-in which case he would with draw upon the announcement of the act. Mississippi. The Mississippi Legisla ture, on the 29th of November, adopted resolutions appointing Commissioners to visit the Slave States to insure cooperation and uniformity of action. [The names of gentlemen appointed are given in the Summary.] On the 29th of November, a large meeting was held in Vicksburg, Miss., which, after a protracted session, adopted resolutions of a somewhat novel character, from which we extract the following: Resolved, That we have yet remedies within the Union, so far untried, but fully adequate to defeat for the present the sectional aggressive combination now made in the North against the South; that by the control of the Senate and the House-the one body representing the sovereignty of the coequal States, and the other the popular will-the conservative members of these bodies can, using the undoubted power granted in the Constitution, and in maintenance of its spirit prevent all appointments to office-Cabinet or otherwise-stop all supplies, and check the wheels of Government for two years-at least from March 4, 1861; that, however violent the remedy, the Constitution warrants it, and the exi gency will have arisen on that day when the remedy should be applied. "Resolved, That a suspension of the active powers of Government for two or four years would not be. so great an evil as the utter extinguishment of the | Mr. Bell took strong Union grounds. A Convention of Southern States was recommended, and separate secession "would be an act of precipitation not justified by existing circumstances." Не did not consider that the election of Mr. Georgia. This meeting was said to represent the might result from secession. The disunion "conservative" feeling of the State. Tennessee. A very exciting assemblage of the citizens of Memphis, Tennessee, took place on the evening of November 30th. It was called for cementing and organizing the secession sentiment, but the Unionists were so numerous that the meeting was everything else than harmonious. A gathering of the citizens of Davidson County, Tenn., on the 1st of December, requested the Governor to summon the Legislature, that it "may provide for a State Convention, to be elected by the people, the object of which shall be to bring about a conference of Southern States, to consider existing political troubles, and, if possible, to compose our sectional strifes." It is certain that, up to December 3d, the Union feeling was largely in the ascendant, even in Western Tennessee. In Central and Eastern Tennessee it was then, and continued to be, the prevailing sentiment-shining out of the darkness of revolution like a beacon-light. feeling was represented as on the daily increase. The certainty of the seccssion of South Carolina and Alabama gave certainty to the movement in Georgia. Gov. Brown, Dec. 9th, published a long letter favoring early secession. The State Senate, Dec. 4th, voted to indefinitely postpone the resolutions in favor of calling a Convention of Southern States. The vote stood 58 to 45. This nonacceptance was construed as highly favorable to the cause of separate and decisive action on the part of Georgia, without any reference to the action of any other State. The rejec * Regarding the sin of the Slave States in keeping up Slavery agitation, Madison, in 1833, thus wrote to Henry Clay : alarm the South by imputations against the North, "It is painful to see the unceasing efforts to of unconstitutional designs on the subject of Slavery. You are right, I have no doubt, in believing that no such intermeddling disposition exists in the body of our Northern brethren. Their good faith is sufficiently guaranteed by the interest they have as merchants, as ship-owners, and as manufacturers, in preserving a union with the Slaveholding States. On the other hand what madness in the South to look for greater safety in disunion! It would be worse than jumping into the fire for fear of the fry ing-pan. The danger from the alarm is, that the Governor Harris (of Tennessee) called an extra session of the Legislature to meet Jan. 7th, "to consider the present state of the country." It was quite generally understood that the Governor was in the league of co-pride and resentment exerted by them may be an operationists. On the 6th of Dec. Hon. John Bell published in Nashville an elaborate letter, in reply to an invitation to address the mass convention at Vicksburg, above referred to. In it overmatch for the dictates of prudence, and favor the projects of a Southern Convention, insidiously revived, as promising by its counsels the best securities against grievances of every sort from the North." |