PUBLIC DOCUMENTS. 



597 



danger fairly in the face ; secession is neither more nor 

 ..in revolution. It may or it may not be a justi- 

 fiable revolution, but still it is revolution. 



What, in the mean time, is the responsibility and 

 true position of the Executive? He is bound by sol- 

 emn oath before God and the country " to take care 

 that the laws be faithfully executed," and from this 

 obligation he cannot be absolved by any human power. 

 But what if the performance of this duty, in whole or 

 in part, has been rendered impracticable by events 

 over which he could have exercised no control ? Such, 

 at the present moment, is the case throughout the 

 State of South Carolina, so far as the laws of the Unit- 

 ed States to secure the administration of justice by 

 means of the Federal judiciary are concerned. All the 

 Federal officers within its limits, through whose agency 

 alone these laws can be carried into execution, have 

 already resigned. We no longer have a district judge, 

 a district attorney, or a_ marshal in South Carolina. 

 In fact, the whole' machinery of the Federal Govern- 

 ment, necessary for the distribution of remedial jus- 

 tice among the people, has been demolished; and it 

 would be difficult, if not impossible, to replace it. 



The only acts of Congress on the statute-book bear- 

 in? upon this subject are those of the 28th February, 

 1795, and 3d March, 1S07. These authorize the Pres'i- 

 dent, after he shall have ascertained that the marshal, 

 with his posse cornitatus, is unable to execute civil or 

 criminal process in any particular case, to call forth 

 the militia and employ the army and navy to aid him 

 in performing this service; having first b"y proclama- 

 tion commanded the insurgents " to disperse and re- 

 tire peaceably to their respective abodes within a 

 limited time. This duty cannot by possibility be 

 performed in a State where no judicial authority exists 

 to issue process, and where there is no marshal to ex- 

 ecute it, and where, even if there were such an officer, 

 the entire population would constitute one solid com- 

 bination to resist him. 



The bare enumeration of these provisions proves how 

 inadequate they are without further legislation to over- 

 come uunited opposition in a single State, not to speak 

 of other States who may place themselves in a similar 

 attitude. Congress alone has power to decide wheth- 

 er the present laws can or cannot be amended so as 

 to carry out more effectually the objects of the Con- 

 stitution. 



The same insuperable obstacles do not lie in the way 

 of executing the laws for the collection of the customs. 

 The revenue still continues to be collected, as hereto- 

 fore, at the custom-house in Charleston; and should 

 the collector unfortunately resign, a successor may be 

 appoiuted to perform this duty. 



Then, in regard to the property of the United States 

 in South Carolina. This has been purchased for a 

 fair equivalent, " by the consent of the Legislature of 

 the State," " for the erection of forts, magazines, ar- 

 senals," &c., and over these the authority " to exer- 

 cise exclusive legislation " has been expressly granted 

 by the Constitution to Congress. It is not believed 

 that anv attempt will be made to expel the United 

 States from this property by force; but if in this I 

 should prove to be mistaken, the officer in command 

 of the forts has received orders to act strictly on the 

 defensive. In such a contingency, the responsibility 

 for consequences would rightfully "rest upon the heads 

 of the assailants. 



Apart from the execution of the laws, so far as this 

 may be practicable, the Executive has no authority to 

 decide what shall be the relations between the Federal 

 Government and South Carolina. He has been invest- 

 ed with no such discretion. He possesses no power to 

 change the relations heretofore existing between them, 

 much less to acknowledge the independence of that 

 State. This would be to invest a mere Executive officer 

 with the power of recognizing the dissolution of the 

 Confederacy among our thirty-three sovereign States. 

 It bears no resemblance to the recognition of a foreign 

 de facto Government, involving no such responsibility. 

 Any attempt to do this would, on his part, be a naked 

 act of usurpation. It is, therefore, my duty to submit 



to Congress the whole question in all ita bearings. 

 The course of events is so rapidly hastening forward, 

 that the emergency may soon arise when you may 

 be called upon to decide the momentous question 

 whether you possess the power, by force of arms, to 

 compel a State to remain in the Union. I should feel 

 myself recreant to my duty were I not to express an 

 op'inion on this important subject. 



The question fairly stated is : Has the Constitution 

 delegated to Congress the power to coerce a State into 

 submission which is attempting to withdraw, or has 

 actually withdrawn from the Confederacy? If an- 

 swered" in the affirmative, it must be on the principle 

 that the power has been conferred upon Congress to 

 declare and to make war against a State. After much 

 serious reflection I have arrived at the conclusion that 

 no such power has been delegated to Congress or to 

 any other department of the Federal Government It 

 is manifest, upon an inspection of the Constitution, 

 that this is not among the specific and enumerated 

 powers granted to Congress ; and it is equally appa- 

 rent that its exercise is not " necessary and proper for 

 carrying into execution " any one of these powers. 

 So far from this power having been delegated to Con- 

 gress, it was expressly refused by the convention 

 which framed the Constitution. 



It appears, from the proceedings of that body, that 

 on the 31st May, 1787, the clause " authorizing'an ex- 

 ertion of the force of the whole against a delinquent 

 State " came up for consideration. Mr. Madison op- 

 posed it in a brief but powerful speech, from which I 

 shall extract but a single sentence. He observed : 

 " The use of force against a State would look more 

 like a declaration of war than an infliction of punish- 

 ment ; and would probably be considered by the party 

 attacked as a dissolution of all previous co'mpacts by 

 which it might be bound." Upon his motion the 

 clause was unanimously postponed, and was never, I 

 believe, again presented. Soon afterwards, on the 

 Sth June, 1787, when incidentally adverting to the 

 subject, he said : " Any Government for the United 

 States, formed on the supposed practicability of using 

 force against the unconstitutional proceedings of the 

 States, would prove as visionary and fallacious as the 

 Government of Congress," evidentlv meaning the then 

 existing Congress of the old Confederation. 



Without descending to particulars, it may be safely 

 asserted, that the power to make war against a State 

 is at variance with the whole spirit and intent of the 

 Constitution. Suppose such a war should result in 

 the conquest of a State : how are we to govern it af- 

 terwards ? Shall we hold it as a province, and govern 

 it by despotic power? In the nature of things we 

 coufd not, by physical force, control the will of the 

 people, and compel them to elect Senators and Repre- 

 sentatives to Congress, and to perform all the other 

 duties depending upon their own volition, and re- 

 quired from the free citizens of a free State as a con- 

 stituent member of the Confederacy. 



But, if we possessed this power," would it be wise to 

 exercise it under existing circumstances? The object 

 would doubtless be to preserve the Union. War would 

 not only present the most effectual means of destroy- 

 ing it, but would banish all hope of its peaceable re- 

 construction. Besides, in the fraternal conflict a vast 

 amount of blood and treasure would be expended, 

 rendering future reconciliation between the States im- 

 possible. In the mean time, who can foretell what 

 would be the sufferings and privations of the people 

 during its existence? 



The fact is, that our Union rests upon public opin- 

 ion, and can never be cemented by the mood of its 

 citizens shed in civil war. If it cannot live in the 

 affections of the people, it must one day perish. Con- 

 gress possess many means of preserving it by concili- 

 ation ; but the sword was not placed in their hand to 

 preserve it by force. 



But may 1 be permitted solemnly to invoke my 

 countrymen to pause and deliberate, before they de- 

 termine to destroy this, the grandest temple which 

 has ever been dedicated to human freedom since th 



