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The Rise and Fall of the Confederate Government
by Jefferson Davis
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It may be pardoned to one who, from his earliest youth up, has been connected with a particular party, who has always believed that the welfare and the safety of the country most securely rested with that party, who has seen in the triumph of Democracy the triumph of the Union, and who has believed for years past that the downfall of Democracy would be its destruction—it may be pardoned, I say, under such circumstances as these, to such a person as that, to refer even in this connection to that feature of the particular point which I am discussing, which has been brought forward by the recent action of that party. States met together to consult as brethren, to see whether they could agree as well upon the candidate as upon the creed, and it was apparent that division had entered into our ranks. After days of discussion, we saw that party convention broken. We saw the enemies of Democracy waiting to be invited to its funeral, and jestingly looking into the blank faces of those of us to whom the telegraph brought the sad intelligence. I hope this is, however, but the mist of the morning. I have faith in the Democracy, and that it still lives. I have faith in the patriotism and in the good sense of the Democracy, that they will assert the truth, boldly pronounce it, meet the issue, and I trust in the good sense and patriotism of the people for their success.

In this connection, it may be permissible to review our present party condition. For a long time two parties divided the people of the United States. The controversy was mainly upon questions of expediency; sometimes of constitutionality. They divided men in all of the States. The contest was sometimes won by one, and sometimes by the other. The Whig party lives now but in history, yet it has a history of which any of its members may be proud. It bore the high but not successful part of stemming the tide of popular impulse, and thus failed to attain the highest power. Differing from them upon the points at issue, I offer the homage of my respect to those who, adhering to what they believed to be true, go down sooner than find success in the abandonment of principle. With the disappearance of that party—and perhaps for the very reasons that caused its disappearance—up rose radical organizations who strode so far beyond progressive Democracy that Democracy took the place now left vacant by the old Whig party, and became the reservoir into which all conservatism was poured. Therefore it is that so many of those men, eminent in their day, eminent for their services, eminent in their history, have approved of the Democratic party in the present condition of the country as the only conservative element which remains in our politics. In the midst of this radicalism, of this revolutionary tendency, it becomes not the regret of a partisan merely; it is the sadness of an American citizen, that the party on which the conservative hopes of the country hang has been threatened with division, and possibly may not hereafter be united. Thanks to a sanguine temperament, thanks to an abiding faith, thanks to a confidence in the Providence which has so long ruled for good the destiny of my country, I believe it will reunite, and reunite upon sound and acceptable principles. At least, I hope so.

From the postulates which I have laid down result the fourth and fifth resolutions. They are the two which I expect to be opposed. They contain the assertion of the equality of rights of all the people of the United States in the Territories, and they declare the obligation of the Congress to see these rights protected. I admit that the United States may acquire eminent domain. I admit that the United States may have sovereignty over territory; otherwise the sovereign jurisdiction which we obtained by conquest or treaty would not pass to us. I deny that their agent, the Federal Government, under the existing Constitution, can have eminent domain; I deny that it can have sovereignty. I consider it as the mere agent of the States—an agent of limited power; and that it can do nothing save that which the Constitution empowers it to perform; and that, though the treaty or the deed of cession may direct or control, it can not enlarge or expand the powers of the Congress; that it is not sovereign in any essential particular. It has functions to perform, and those functions I propose now to consider.

The power of Congress over the Territories—a subject not well defined in the Constitution of the United States—has been drawn from various sources by different advocates of that power. One has found it in the grant of power to dispose of the Territory and other public property. That is to say, because the agent was authorized to sell a particular thing, or to dispose of it by grant or barter, therefore he has sovereign power over that and all else which the principal, constituting him an agent, may hereafter acquire! The property, besides the land, consisted of forts, of ships, of armaments, and other things which had belonged to the States in their separate capacity, and were turned over to the Government of the Confederation, and transferred to the Government of the United States, and of this, together with the land so transferred, the Federal Government had the power to dispose; and of territory thereafter acquired, of arms thereafter made or purchased, of forts thereafter constructed, or custom-houses, or docks, or lights, or buoys; of all these, of course, it had power to dispose. It had the power to create them; it must, of necessity, have had the power to dispose of them. It was only necessary to confer the power to dispose of those things which the Federal Government did not create, of those things which came to it from the States, and over which they might signify their will for its control.

I look upon it as the mere power to dispose of, for considerations and objects defined in the trust, the land held in the United States, none of which then was within the limits of the States, and the other public property which the United States received from the States after the formation of the Union. I do not agree with those who say the Government has no power to establish a temporary and civil government within a Territory. I stand half-way between the extremes of squatter sovereignty and of Congressional sovereignty. I hold that the Congress has power to establish a civil government; that it derives it from the grants of the Constitution—not the one which is referred to; and I hold that that power is limited and restrained, first, by the Constitution itself, and then by every rule of popular liberty and sound discretion, to the narrowest limits which the necessities of the case require. The Congress has power to defend the territory, to repel invasion, to suppress insurrection; the Congress has power to see the laws executed. For this it may have a civil magistracy—territorial courts. It has the power to establish a Federal judiciary. To that Federal judiciary, from these local courts, may come up to be decided questions with regard to the laws of the United States and the Constitution of the United States. These, combined, give power to establish a temporary government, sufficient, perhaps, for the simple wants of the inhabitants of a Territory, until they shall acquire the population, until they shall have the resources and the interests which justify them in becoming a State. I am sustained in this view of the case by an opinion of the Supreme Court of the United States in 1845, in the case of Pollard's Lessee vs. P. Hagan (3 Howard, 222, 223), in which the Court say:

"Taking the legislative acts of the United States, and the States of Virginia and Georgia, and their deeds of cession to the United States, and giving to each separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government; and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them."

This was a question of land. It was land lying between high and low water, over which the United States claimed to have and to exercise authority, because of the terms on which Alabama had been admitted into the Union. In that connection the Court say, in the same case:

"When Alabama was admitted into the Union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States for the temporary purpose provided for in the deeds of cession and the legislative acts connected with it. Nothing remained in the United States, according to the terms of the agreement, but the public lands; and if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative; because the United States has no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere, except in the cases in which it is expressly granted."

Another case arose not long afterward, in which not land, but religion, was involved, where suit was brought against the municipality of New Orleans because they would not allow a dead body to be exposed at a place where, according to the religious rites of those interested, it was deemed they had a right thus to expose it. On that the Supreme Court say, speaking of the ordinance for the government of Louisiana:

"So far as they conferred political rights and secured civil and religious liberties (which are political rights) the laws of Congress were all suspended by the State Constitution; nor is any part of them in force, unless they were adopted by the Constitution of Louisiana, as laws of the State."[206]

Thus we find the Supreme Court sustaining the proposition that the Federal Government has power to establish a temporary civil government within the limits of a Territory, but that it can enact no law which will endure beyond the temporary purposes for which such government was established. In other cases the decisions of the Court run in the same line; and in 1855 the then Attorney-General, most learned in his profession—and in what else is he not learned, for he may be said to be a man of universal acquirements?—Attorney-General Cushing then foretold what must have been the decision of the Supreme Court on the Missouri Compromise, anticipating the decision subsequently made in the case of Dred Scott; that decision for which the venerable justices have been so often and so violently arraigned. He foretold it as the necessary consequence from the line of precedents descending from 1842, affirmed and reaffirmed in different cases, and now bearing on a case similar in principle, and only different in the mere reference to the subject involved from those which had gone before. As connected with the decision which had agitated the peace of the country; as the anticipation of that decision before it was made, viewing it as the necessary consequence of the decisions which the court had made before; if it be the pleasure of the Senate, I ask my friend from South Carolina [Mr. Chesnut] to read for me a letter of the Attorney-General, being an official answer made by him in relation to the military reservation which was involved in the question before him.

Mr. Chesnut read from the "Opinions of the Attorneys-General," vol. vii, page 575:

"The Supreme Court has determined that the United States never held any municipal sovereignty, jurisdiction, or right of soil in the territory of which any of the new States have been formed, except for temporary purposes, and to execute the trusts created by the deeds of cession....

"By the force of the same principle, and in the same line of adjudications, the Supreme Court would have had to decide that the provision of the act of March 6, 1820, which undertakes to determine in advance the municipal law of all that portion of the original province of Louisiana which lies north of the parallel 36 deg. 30' north latitude, was null and void ab incepto, if it had not been repealed by a recent act of Congress. (Compare iv, Statutes at Large, p. 848, and x, Statutes at Large, p. 289.) For an act of Congress which pretends of right, and without consent or compact, to impose on the municipal power of any new State or States limitations and restrictions not imposed on all, is contrary to the fundamental condition of the Confederation, according to which there is to be equality of right between the old and new States 'in all respects whatsoever.'"

Mr. Davis: It was not long after this official opinion of the Attorney-General before the case arose on which the decision was made which has so agitated the country. Fortunate indeed was it for the public peace that land and religion had been decided—those questions on which men might reason had been the foundation of judicial decision—before that which drives all reason, it seems, from the mind of man, came to be presented the question whether Cuffee should be kept in his normal condition or not; the question whether the Congress of the United States could decide what might or might not be property in a Territory—the case being that of an officer of the army sent into a Territory to perform his public duty, having taken with him his negro slave. The court, however, in giving their decision in this case—or their opinion, if it suits gentlemen better—have gone into the question with such clearness, such precision, and such amplitude, that it will relieve me from the necessity of arguing it any further than to make a reference to some sentences contained in that opinion. And here let me say, I can not see how those who agreed on a former occasion that the constitutional right of the slaveholder to take his property into the Territory—the constitutional power of the Congress and the constitutional power of the Territory to legislate upon that subject—should be a judicial question, can now attempt to escape the operation of an opinion which covers the exact political question which, it was known beforehand, the Court would be called upon to decide. Decided in strictness of technical language, it was known it could not be. Hundreds, thousands, a vast variety of cases may arise, and centuries elapse, and leave that Court, if our Union still exists, deciding questions in relation to that character of property in the Territories; but the great and fundamental idea was that, after thirty years of angry controversy, dividing the people and paralyzing the arm of the Federal Government, some umpire should be sought which would compose the difficulty and set it upon a footing to leave us in future to proceed in peace; and that umpire was selected which the Constitution had provided to decide questions of law. I ask my friend to read some extracts from the decision.

Mr. Chesnut read as follows, from the case of Dred Scott vs. Sandford, pp. 55-57:

"The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved....

"The powers over person and property, of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under territorial government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt under the plea of implied or incidental powers. And if Congress itself can not do this—if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution....

"And if the Constitution recognizes the right of property of the master in the slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government....

"This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave-property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

"Upon these considerations, it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind, in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory, even if they had been carried there by the owner, with the intention of becoming a permanent resident."

Mr. Davis: Here, then, Mr. President, I say the umpire selected as the referee in the controversy has decided that neither the Congress nor its agent, the territorial government, has the power to invade or impair the right of property within the limits of a Territory. I will not inquire whether it be technically a decision or not. It was obligatory on those who selected the umpire and agreed to abide by the award.

It is well known to those who have been associated with me in the two Houses of Congress that, from the commencement of the question, I have been the determined opponent of what is called squatter sovereignty. I never gave it countenance, and I am now least of all disposed to give it quarter. In 1848 it made its appearance for good purposes. It was ushered in by a great and good man. He brought it forward because of that distrust which he had in the capacity of the Government to bear the rude shock to which it was exposed. His apprehension, no doubt, to some extent sharpened and directed his patriotism, and his reflection led him to a conclusion to which, I doubt not, to-day he adheres as tenaciously as ever; but from which it was my fortune, good or ill, to dissent when his letter was read to me in manuscript—I being, together with some other persons, asked, though not by the writer, whether or not it should be sent. At the first blush I believed it to be a fallacy—a fallacy fraught with mischief; that it escaped an issue which was upon us which it was our duty to meet; that it escaped it by a side path, which led to a greater danger. I thought it a fallacy which would surely be exploded. I doubted then, and still more for some time afterward, when held to a dread responsibility for the position which I occupied. I doubted whether I should live to see that fallacy exploded. It has been more speedily, and, to the country, more injuriously than I anticipated. In the mean time, what has been its operation? Let Kansas speak—the first great field on which the trial was made. What was then the consequence? The Federal Government withdrawing control, leaving the contending sections, excited to the highest point upon this question, each to send forth its army, Kansas became the battle-field, and Kansas the cry, which wellnigh led to civil war. This was the first fruit. More deadly than the fatal upas, its effect was not limited to the mere spot of ground on which the dew fell from its leaves, but it spread throughout the United States; it kindled all which had been collected for years of inflammable material. It was owing to the strength of our Government and the good sense of the quiet masses of the people that it did not wrap our country in one widespread conflagration.

What right had Congress then, or what right has it now, to abdicate any power conferred upon it as trustee of the States? What right had Congress then, or has it now, to shrink from the performance of a duty because the mere counters spread on the table may be swept off, when they have not answered the purposes for which they were placed? What is it to you, or me, or any one, when we weigh our own continuation in place against the great interests of which we are conservators; against the welfare of the country, and the liberty of our posterity to the remotest ages? What is it, I say, which can be counted in the balance on our side against the performance of that duty which is imposed upon us? If any one believes Congress has not the constitutional power, he acts conscientiously in insisting upon Congress not usurping it. If any one believes that the squatters upon the lands of the United States within a Territory are invested with sovereignty, having won it by some of those processes unknown to history, without grant, or without revolution, without money and without price, he, adhering to the theory, may pursue it to its conclusion. To the first class, those who claim sovereign power over the Territories for Congress, I say, lay your hand upon the Constitution, and find there the warrant of your authority. Of the second, those of whom I have last spoken, I ask, in the Constitution, reason, right, or justice, what is there to sustain your theory?

The phraseology which has been employed on this question seems to me to betray a strange confusion of ideas—to speak of a sovereignty, a plenary legislative power deriving its power from an agent; a sovereignty, held subject to articles with the formation of which that sovereignty had nothing to do; a compact to which it was not a party! You say to a sovereign: "A and B have agreed on certain terms between themselves, and you must govern your conduct according to them; yet I do not deny your sovereignty!" That is, the power to do as they please, provided it conforms to the rule which others chose to lay down! Can this be a definition of sovereignty?

But again, sir, nothing seems to me more illogical than the argument that this power is acquired by a grant from the Congress, connected with the other argument that Congress have not got the power to do the act themselves; that is to say, that the recipient takes more than the giver possessed; that a Territorial Legislature can do anything which a State Legislature can do, and that "subject to the Constitution" means merely the restraints imposed upon both. This is confounding the whole theory and the history of our Government. The States were the grantors; they made the compact; they gave the Federal agent its powers; they inhibited themselves from doing certain things, and all else they retained to themselves. This Federal agent got just so much as the States chose to give—no more. It could do nothing save by warrant of the authority of the grant made by the States. Therefore its powers are not comparable to the powers of the State Legislature, because one is the creature of grant, and the other the exponent of sovereign power. The Supreme Court have covered the whole ground of the relation of the Congress to the Territorial Legislatures—the agent of the States and the agent of the Congress—and the restrictions put upon the one are those put upon the other, in language so clear as to render it needless further to labor the subject.

In 1850, following the promulgation of this notion of squatter sovereignty, we had the idea of non-intervention introduced into the Senate of the United States, and it is strange to me how that idea has expanded. It seems to have been more malleable than gold; to have been hammered out to an extent that covers boundless regions undiscovered by those who proclaimed the doctrine. Non-intervention then meant, as the debates show, that Congress should neither prohibit nor establish slavery in the Territories. That I hold to now. Will any one suppose that Congress then meant by non-intervention that Congress should legislate in no regard in respect to property in slaves? Why, sir, the very acts which they passed at the time refute it. There is the fugitive slave law, and that abomination of laws which assumed to confiscate the property of a citizen who should attempt to bring it into this District with intent to remove it to sell it at some other time and at some other place. Congress acted then upon the subject—acted beyond the limit of its authority, as I believed, confidently believed; and, if ever that act comes before the Supreme Court, I feel satisfied they will declare it null and void. Are we to understand that those men, thus acting at the very moment, intended by non-intervention to deny and repudiate the laws they were then creating? The man who stood most prominently the advocate of the measures of that year, who, great in many periods of our history, perhaps shone then with the brightest light his genius ever emitted—I refer to Henry Clay—has given his own view on this subject; and I suppose he may be considered as the highest authority. On June 18, 1850, I had introduced an amendment to the compromise bill, providing:

"And that all laws, or parts of laws, usages, or customs, preexisting in the Territories acquired by the United States from Mexico, and which in said Territories restrict, abridge, or obstruct, the full enjoyment of any right of person or property of a citizen of the United States, as recognized or guaranteed by the Constitution or laws of the United States, are hereby declared and shall be held as repealed."

Upon that, Mr. Clay said:

"Mr. President: I thought that upon this subject there had been a clear understanding in the Senate that the Senate would not decide itself upon the lex loci as it respects slavery; that the Senate would not allow the Territorial Legislature to pass any law upon that question. In other words, that it would leave the operation of the local law, or of the Constitution of the United States upon that local law, to be decided by the proper and competent tribunal—the Supreme Court of the United States."—(Appendix to Congressional Globe, Thirty-first Congress, first session, p. 916.)

That was the position taken by Mr. Clay, the leader. A mere sentence will show with what view I regarded the dogma of non-intervention when that amendment was offered. I said:

"But what is non-intervention seems to vary as often as the light and shade of every fleeting cloud. It has different meanings in every State, in every county, in every town. If non-intervention means that we shall not have protection for our property in slaves, then I always was, and always shall be, opposed to it. If it means that we shall not have the protection of the law because it would favor slaveholders, that Congress shall not legislate so as to secure to us the benefits of the Constitution, then I am opposed to non-intervention, and shall always be opposed to it."—(Appendix to Congressional Globe, Thirty-first Congress, first session, p. 919.)

Mr. Downs, one of the Committee of Thirteen, and an advocate of the measures, said:

"What I understand by non-intervention is, an interposition of Congress prohibiting, or establishing, or interfering with slavery."—(Appendix to Congressional Globe, Thirty-first Congress, first session, p. 99.)

By what species of legerdemain this doctrine of non-intervention has come to extend to a paralysis of the Government on the whole subject, to exclude the Congress from any kind of legislation whatever, I am at a loss to conceive. Certain it is, it was not the theory of that period, and it was not contended for in all the controversies we had then. I had no faith in it then; I considered it an evasion; I held that the duty of Congress ought to be performed; that the issue was before us, and ought to be met, the sooner the better; that truth would prevail if presented to the people; borne down to-day, it would rise up to-morrow; and I stood then on the same general plea which I am making now. The Senator from Illinois [Mr. Douglas] and myself differed at that time, as I presume we do now. We differed radically then. He opposed every proposition which I made, voting against propositions to give power to a Territorial Legislature to protect slave-property which should be taken there; to remove the obstructions of the Mexican laws; voting for a proposition to exclude the conclusion that slavery might be taken there; voting for the proposition expressly to prohibit its introduction; voting for the proposition to keep in force the laws of Mexico which prohibited it. Some of these votes, it is but just to him I should say, I think he gave perforce of his instructions; but others of them, I think it is equally fair to suppose, were outside of the limits of any instructions which could have been given before the fact.

In 1854, advancing in this same general line of thought, the Congress, in enacting territorial bills, left out a provision which had before been usually contained in them, requiring the Legislature of the Territory to submit its laws to the Congress of the United States. It has been sometimes assumed that this was the recognition of the power of the Territorial Legislature to exercise plenary legislation, as might that of a State. It will be remembered that, when our present form of government was instituted, there were those who believed the Federal Government should have the power of revision over the laws of a State. It was long and ably contended for in the Convention which formed the Constitution; and one of the compromises which was made was an appellate power—to lodge power in the Supreme Court to decide all questions of constitutional law.

But did this omission of the obligation to send here the laws of the Territories work this grant of power to the Territorial Legislature? Certainly not; it could not; and that it did not is evinced by the fact that, at a subsequent period, the organic act was revised because the legislation of the Territory of Kansas was offensive to the Congress of the United States. Congress could not abdicate its authority; it could not abandon its trust; and, when it omitted the requirement that the laws should be sent back, it created a casus which required it to act without the official records being laid before it, as they would have been if the obligation had existed. That was all the difference. It was not enforcing upon the agent the obligation to send the information. It left Congress, as to its power, just where it was. I find myself physically unable to go as fully into the subject as I intended, and therefore, omitting a reference to those acts, suffice it to say that here was the recognition of the obligation of Congress to interpose against a Territorial Legislature for the protection of personal right. That is what we ask of Congress now. I am not disposed to ask this Congress to go into speculative legislation. I am not one of those who would willingly see this Congress enact a code to be applied to all Territories and for all time to come. I only ask that cases, as they arise, may be met according to the exigency. I ask that when personal and property rights in the Territories are not protected, then the Congress, by existing laws and governmental machinery, shall intervene and provide such means as will secure in each case, as far as may be, an adequate remedy. I ask no slave code, nor horse code, nor machine code. I ask that the Territorial Legislature be made to understand beforehand that the Congress of the United States does not concede to them the power to interfere with the rights of person or property guaranteed by the Constitution, and that it will apply the remedy, if the Territorial Legislature should so far forget its duty, so far transcend its power, as to commit that violation of right. That is the announcement of the fifth resolution.

* * * * *

These are the general views which I entertain of our right of protection and the duty of the Government. They are those which are entertained by the constituency I have the honor to represent, whose delegation has recently announced those principles at Charleston. I honor them, and I approve their conduct. I think their bearing was worthy of the mother-State which sent them there; and I doubt not she will receive them with joy and gratitude. They have asserted and vindicated her equality of right. By that asserted equality of right I doubt not she will stand. For weal or for woe, for prosperity or adversity, for the preservation of the great blessings which we enjoy, or the trial of a new and separate condition, I trust Mississippi never will surrender the smallest atom of the sovereignty, independence, and equality, to which she was born, to avoid any danger or any sacrifice to which she may hereby be exposed.

The sixth resolution of the series declares at what time a State may form a Constitution and decide upon her domestic institutions. I deny this right to the territorial condition, because the Territory belongs in common to the States. Every citizen of the United States, as a joint owner of that Territory, has a right to go into it with any property which he may possess. These territorial inhabitants require municipal law, police, and government. They should have them, but they should be restricted to their own necessities. They have no right within their municipal power to attempt to decide the rights of the people of the States. They have no right to exclude any citizen of the United States from owning and equally enjoying this common possession; it is for the purpose of preserving order, and giving protection to rights of person and property, that a municipal territorial government should be instituted.

The last resolution refers to a law founded on a provision of the Constitution, which contains an obligation of faith to every State of the Union; and that obligation of faith has been violated by thirteen States of the Confederacy—as many as originally fought the battles of the Revolution and established the Confederation. Is it to be expected that a compact thus broken in part, violated in its important features, will be regarded as binding in all else? Is the free trade which the North sought in the formation of the Union, and for which the States generally agreed to give Congress the power to regulate commerce, to be trampled under foot by laws of obstruction, not giving to the citizens of the South that free transit across the territory of the Northern States which we might claim from any friendly state under Christendom; and is Congress to stand powerless by, on the doctrine of non-intervention? We have a right to claim abstinence from interference with our rights from any Government on the earth. Shall we claim no more from that which we have constituted for our own purposes, and which we support by draining our own means for its support?

We have had agitation, changing in its form, and gathering intensity, for the last forty years. It was first for political power, and directed against new States; now it has assumed a social form, is all-prevailing, and has reached the point of revolution and civil war. For it was only last fall that an overt act was committed by men who were sustained by arms and money, raised by extensive combination among the non-slaveholding States, to carry treasonable war against the State of Virginia, because now, as before the Revolution, and ever since, she held the African in bondage. This is part of the history and marks the necessity of the times. It warns us to stop and reflect, to go back to the original standard, to measure our acts by the obligation of our fathers, by the pledges they made one to the other, to see whether we are conforming to our plighted faith, and to ask seriously, solemnly, looking each other inquiringly in the face, what we should do to save our country.

This agitation being at first one of sectional pride for political power, has at last degenerated or grown up to (as you please) a trade. There are men who habitually set aside a portion of money which they are annually to apply to what are called "charitable purposes"—that is to say, so far as I understand it, to support some vagrant lecturer, whose purpose is agitation and mischief wherever he goes. This constitutes, therefore, a trade; a class of people are thus employed—employed for mischief, for incendiary purposes, perhaps not always understood by those who furnish the money; but such is the effect; such is the result of their action; and in this state of the case I call upon the Senate to affirm the great principles on which our institutions rest. In no spirit of crimination have I stated the reasons why I present it. For these reasons I call upon them now to restrain the growth of evil passion, and to bring back the public sense as far as in them lies, by earnest and united effort, if it may be, to crown our country with peace, and start it once more in its primal channel on a career of progressive prosperity and justice.

The majority section can not be struggling for additional power in order to preserve their rights. If any of them ever believed in what is called Southern aggression, they know now they have the majority in the representative districts and in the electoral college. They can not, therefore, fear an invasion of their rights. They need no additional political power to protect them from that. The argument, then, or the reason on which this agitation commenced, has passed away; and yet we are asked, if a party hostile to our institutions shall gain possession of the Government, that we shall stand quietly by, and wait for an overt act. Overt act! Is not a declaration of war an overt act? What would be thought of a country that, after a declaration of war, and while the enemy's fleets were upon the sea, should wait until a city had been sacked before it would say that war existed, or resistance should be made? The power of resistance consists, in no small degree, in meeting the evil at the outer gate. I can speak for myself—and I have no right to speak for others—when I say, that, if I belonged to a party organized on the basis of making war on any section or interest in the United States, if I know myself, I would instantly quit it. We have made no war against you. We have asked no discrimination in our favor. We claim to have but the Constitution fairly and equally administered. To consent to less than this would be to sink in the scale of manhood; would be to make our posterity so degraded that they would curse this generation for robbing them of the rights their Revolutionary fathers bequeathed them....

Among the great purposes declared in the preamble of the Constitution is one to provide for the general welfare. Provision for the general welfare implies general fraternity. This Union was not expected to be held together by coercion; the power of force as a means was denied. They sought, however, to bind it perpetually together with that which was stronger than triple bars of brass and steel—the ceaseless current of kind offices, renewing and renewed in an eternal flow, and gathering volume and velocity as it rolled. It was a function intended not for the injury of any. It declared its purpose to be the benefit of all. Concessions which were made between the different States in the Convention prove the motive. Each gave to the other what was necessary to it; what each could afford to spare. Young as a nation, our triumphs under this system have had no parallel in human history. We have tamed a wilderness; we have spanned a continent. We have built up a granary that secures the commercial world against the fear of famine. Higher than all this, we have achieved a moral triumph. We have received, by hundreds of thousands, a constant tide of immigrants—energetic, if not well educated, fleeing, some from want, some from oppression, some from the penalties of violated law—received them into our society; and by the gentle suasion of a Government which exhibits no force, by removing want and giving employment, they have subsided into peaceful citizens, and have increased the wealth and power of our country.

If, then, this temple so blessed, and to the roof of which we were about to look to see it extended over the continent, giving a protecting arm to infant republics that need it—if this temple is tottering on its pillars, what, I ask, can be a higher or nobler duty for the Senate to perform than to rush to its pillars and uphold them, or be crushed in the attempt? We have tampered with a question which has grown in magnitude by each year's delay. It requires to be plainly met—the truth to be told. The patriotism and the sound sense of the people, whenever the Federal Government from its high places of authority shall proclaim the truth in unequivocal language, will, in my firm belief, receive and approve it. But so long as we deal, like the Delphic oracle, in words of double meaning, so long as we attempt to escape from responsibility, and exhibit our fear to declare the truth by the fact that we do not act upon it, we must expect speculative theory to occupy the mind of the public, and error to increase as time rolls on. But, if the sad fate should be ours, for this most minute cause, to destroy our Government, the historian who shall attempt philosophically to examine the question will, after he has put on his microscopic glasses and discovered it, be compelled to cry out, "Veritably so the unseen insect in the course of time destroys the mighty oak!" Now, I believe—may I not say I believe? if not, then I hope—there is yet time, by the full, explicit declaration of the truth, to disabuse the popular mind, to arouse the popular heart, to expose the danger from lurking treason and ill-concealed hostility; to rally a virtuous people to their country's rescue, who, circling closer and deeper as the storm gathers fury, around the ark of their fathers' covenant, will place it in security, there happily to remain a sign of fraternity, justice, and equality, to our remotest posterity.

[Footnote 199: Elliott's "Debates," vol. v, p. 133.]

[Footnote 200: Ibid., p. 457.]

[Footnote 201: Elliot's "Debates," vol. v, p. 457.]

[Footnote 202: Ibid.]

[Footnote 203: Ibid, p. 459.]

[Footnote 204: Ibid.]

[Footnote 205: Ibid., p. 460.]

[Footnote 206: Permoli vs. First Municipality, 3 Howard, 610.]



APPENDIX G.

Correspondence between the Commissioners of South Carolina and the President of the United States (Mr. Buchanan) relative to the forts in the harbor of Charleston.

Letter of the Commissioners to the President.

Washington, December 28, 1860.

Sir: We have the honor to transmit to you a copy of the full powers from the Convention of the People of South Carolina, under which we are "authorized and empowered to treat with the Government of the United States for the delivery of the forts, magazines, lighthouses, and other real estate, with their appurtenances, within the limits of South Carolina, and also for an apportionment of the public debt, and for a division of all other property held by the Government of the United States as agent of the confederated States of which South Carolina was recently a member; and generally to negotiate as to all other measures and arrangements proper to be made and adopted in the existing relation of the parties, and for the continuance of peace and amity between this Commonwealth and the Government at Washington."

In the execution of this trust, it is our duty to furnish you, as we now do, with an official copy of the ordinance of secession, by which the State of South Carolina has resumed the powers she delegated to the Government of the United States, and has declared her perfect sovereignty and independence.

It would also have been our duty to have informed you that we were ready to negotiate with you upon all such questions as are necessarily raised by the adoption of this ordinance, and that we were prepared to enter upon this negotiation with the earnest desire to avoid all unnecessary and hostile collision, and so to inaugurate our new relations as to secure mutual respect, general advantage, and a future of good-will and harmony beneficial to all the parties concerned.

But the events of the last twenty-four hours render such an assurance impossible. We came here the representatives of an authority which could, at any time within the past sixty days, have taken possession of the forts in Charleston Harbor, but which, upon pledges given in a manner that, we can not doubt, determined to trust to your honor rather than to its own power. Since our arrival here an officer of the United States, acting, as we are assured, not only without but against your orders, has dismantled one fort and occupied another, thus altering, to a most important extent, the condition of affairs under which we came.

Until these circumstances are explained in a manner which relieves us of all doubt as to the spirit in which these negotiations shall be conducted, we are forced to suspend all discussion as to any arrangements by which our mutual interests might be amicably adjusted.

And, in conclusion, we would urge upon you the immediate withdrawal of the troops from the harbor of Charleston. Under present circumstances, they are a standing menace which renders negotiation impossible, and, as our recent experience shows, threatens speedily to bring to a bloody issue questions which ought to be settled with temperance and judgment.

We have the honor, sir, to be, very respectfully, your obedient servants,

R. W. BARNWELL,} J. H. ADAMS, } Commissioners. JAMES L. ORR, }

To the President of the United States.



Reply of the President to the Commissioners.

Washington City, December 30, 1860.

Gentlemen: I have the honor to receive your communication of 28th inst., together with a copy of your "full powers from the Convention of the People of South Carolina," authorizing you to treat with the Government of the United States on various important subjects therein mentioned, and also a copy of the ordinance bearing date on the 20th inst., declaring that "the union now subsisting between South Carolina and other States, under the name of 'The United States of America,' is hereby dissolved."

In answer to this communication, I have to say that my position as President of the United States was clearly defined in the message to Congress of the 3d instant. In that I stated that, "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 invested 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 its bearings."

Such is my opinion still. I could, therefore, meet you only as private gentlemen of the highest character, and was entirely willing to communicate to Congress any proposition you might have to make to that body upon the subject. Of this you were well aware. It was my earnest desire that such a disposition might be made of the whole subject by Congress, who alone possess the power, as to prevent the inauguration of a civil war between the parties in regard to the possession of the Federal forts in the harbor of Charleston; and I therefore deeply regret that, in your opinion, "the events of the last twenty-four hours render this impossible." In conclusion, you urge upon me "the immediate withdrawal of the troops from the harbor of Charleston," stating that, "under present circumstances, they are a standing menace, which renders negotiation impossible, and, as our present experience shows, threatens speedily to bring to a bloody issue questions which ought to be settled with temperance and judgment."

The reason for this change in your position is that, since your arrival in Washington, "an officer of the United States, acting as we (you) are assured, not only without your (my) orders, has dismantled one fort and occupied another, thus altering, to a most important extent, the condition of affairs under which we (you) came." You also allege that you came here "the representatives of an authority which could at any time within the past sixty days have taken possession of the forts in Charleston Harbor, but which, upon pledges given in a manner that we (you) can not doubt, determined to trust to your (my) honor rather than to its own power."

This brings me to a consideration of the nature of those alleged pledges, and in what manner they have been observed. In my message of the 3d of December last, I stated, in regard to the property of the United States in South Carolina, that it "has been purchased for a fair equivalent 'by the consent of the Legislature of the State, for the erection of forts, magazines, arsenals,' etc., and over these the authority 'to exercise exclusive legislation' has been expressly granted by the Constitution to Congress. It is not believed that any 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." This being the condition of the parties on Saturday, 8th December, four of the representatives from South Carolina called upon me and requested an interview. We had an earnest conversation on the subject of these forts, and the best means of preventing a collision between the parties, for the purpose of sparing the effusion of blood. I suggested, for prudential reasons, that it would be best to put in writing what they said to me verbally. They did so accordingly, and on Monday morning, the 10th instant, three of them presented to me a paper signed by all the representatives from South Carolina, with a single exception, of which the following is a copy:



"To his Excellency James Buchanan, President of the United States:

"In compliance with our statement to you yesterday, we now express to you our strong convictions that neither the constituted authorities, nor any body of the people of the State of South Carolina, will either attack or molest the United States forts in the harbor of Charleston, previously to the action of the Convention, and, we hope and believe, not until an offer has been made, through an accredited representative, to negotiate for an amicable arrangement of all matters between the State and the Federal Government, provided that no reenforcements shall be sent into those forts, and their relative military status shall remain as at present.

"John McQueen, "William Porcher Miles, "M. L. Bonham, "W. W. Boyce, "Lawrence M. Keitt.

"Washington, December 9, 1860."

And here I must, in justice to myself, remark that, at the time the paper was presented to me, I objected to the word "provided," as it might be construed into an agreement, on my part, which I never would make. They said that nothing was further from their intention; they did not so understand it, and I should not so consider it. It is evident they could enter into no reciprocal agreement with me on the subject. They did not profess to have authority to do this, and were acting in their individual character. I considered it as nothing more, in effect, than the promise of highly honorable gentlemen to exert their influence for the purpose expressed. The event has proved that they have faithfully kept this promise, although I have never since received a line from any one of them, or from any member of the Convention on the subject. It is well known that it was my determination, and this I freely expressed, not to reenforce the forts in the harbor, and thus produce a collision, until they had been actually attacked, or until I had certain evidence that they were about to be attacked. This paper I received most cordially, and considered it as a happy omen that peace might still be preserved, and that time might thus be gained for reflection. This is the whole foundation for the alleged pledge.

But I acted in the same manner I would have done had I entered into a positive and formal agreement with parties capable of contracting, although such an agreement would have been, on my part, from the nature of my official duties, impossible.

The world knows that I have never sent any reenforcements to the forts in Charleston Harbor, and I have certainly never authorized any change to be made "in their relative military status."

Bearing upon this subject, I refer you to an order issued by the Secretary of War, on the 11th instant, to Major Anderson, but not brought to my notice until the 21st instant. It is as follows:

"Memorandum of verbal instructions to Major Anderson, First Artillery, commanding Fort Moultrie, South Carolina:

"You are aware of the great anxiety of the Secretary of War that a collision of the troops with the people of this State shall be avoided, and of his studied determination to pursue a course, with reference to the military force and forts in this harbor, which shall guard against such a collision. He has, therefore, carefully abstained from increasing the force at this point, or taking any measures which might add to the present excited state of the public mind, or which would throw any doubt on the confidence he feels that South Carolina will not attempt by violence to obtain possession of the public works, or to interfere with their occupancy. But, as the counsel of rash and impulsive persons may possibly disappoint these expectations of the Government, he deems it proper that you should be prepared with instructions to meet so unhappy a contingency. He has, therefore, directed me, verbally, to give you such instructions.

"You are carefully to avoid every act which would needlessly tend to provoke aggression; and, for that reason, you are not, without evident and imminent necessity, to take up any position which could be construed into the assumption of a hostile attitude; but you are to hold possession of the forts in this harbor, and, if attacked, you are to defend yourself to the last extremity. The smallness of your force will not permit you, perhaps, to occupy more than one of the three forts; but an attack on or attempt to take possession of either of them will be regarded as an act of hostility, and you may then put your command into either of them which you may deem most proper, to increase its power of resistance. You are also authorized to take similar defensive steps whenever you have tangible evidence of a design to proceed to a hostile act.

"D. P. Butler, Assistant Adjutant-General.

"Fort Moultrie, South Carolina, December 11, 1860.

"This is in conformity to my instructions to Major Buel.

"John B. Floyd, Secretary of War."

These were the last instructions transmitted to Major Anderson before his removal to Fort Sumter, with a single exception in regard to a particular which does not, in any degree, affect the present question. Under these circumstances it is clear that Major Anderson acted upon his own responsibility, and without authority, unless, indeed, he had "tangible evidence of a design to proceed to a hostile act" on the part of the authorities of South Carolina, which has not yet been alleged. Still he is a brave and honorable officer, and justice requires that he should not be condemned without a fair hearing.

Be this as it may, when I learned that Major Anderson had left Fort Moultrie, and proceeded to Fort Sumter, my first promptings were to command him to return to his former position, and there to await the contingencies presented in his instructions. This could only have been done, with any degree of safety to the command, by the concurrence of the South Carolina authorities. But, before any steps could possibly have been taken in this direction, we received information, dated on the 28th instant, that "the Palmetto flag floated out to the breeze at Castle Pinckney, and a large military force went over last night (the 27th) to Fort Moultrie." Thus the authorities of South Carolina, without waiting or asking for any explanation, and doubtless believing, as you have expressed it, that the officer had acted not only without, but against my orders, on the very next day after the night when the removal was made, seized, by a military force, two of the three Federal forts in the harbor of Charleston, and have covered them under their own flag, instead of that of the United States. At this gloomy period of our history, startling events succeed each other rapidly. On the very day (the 27th instant) that possession of these two forts was taken, the Palmetto flag was raised over the Federal Custom-House and Post-Office in Charleston; and on the same day every officer of the customs—collector, naval officers, surveyor, and appraisers—resigned their offices. And this, although it was well known, from the language of my message, that as an executive officer I felt myself bound to collect the revenue at the port of Charleston under the existing laws. In the harbor of Charleston we now find three forts confronting each other, over all of which the Federal flag floated only four days ago; but now over two of them this flag has been supplanted, and the Palmetto flag has been substituted in its stead. It is under all these circumstances that I am urged immediately to withdraw the troops from the harbor of Charleston, and am informed that, without this, negotiation is impossible. This I can not do; this I will not do. Such an idea was never thought of by me in any possible contingency. No allusion to it had ever been made in any communication between myself and any human being. But the inference is, that I am bound to withdraw the troops from the only fort remaining in the possession of the United States in the harbor of Charleston, because the officer then in command of all the forts thought proper, without instructions, to change his position from one of them to another. I can not admit the justice of any such inference.

At this point of writing I have received information, by telegram, from Captain Humphreys, in command of the arsenal at Charleston, that "it has to-day (Sunday, the 30th) been taken by force of arms." It is estimated that the munitions of war belonging to the United States in this arsenal are worth half a million of dollars.

Comment is needless. After this information, I have only to add that, while it is my duty to defend Fort Sumter, as a portion of the public property of the United States, against hostile attacks from whatever quarter they may come, by such means as I may possess for this purpose, I do not perceive how such a defense can be construed into a menace against the city of Charleston.

With great personal regard, I remain

Yours, very respectfully,

JAMES BUCHANAN.

To Honorable Robert W. Barnwell, James H. Adams, James L. Orr.

Reply of the Commissioners to the President.

Washington, D.C., January 1, 1861.

Sir: We have the honor to acknowledge the receipt of your letter of the 30th December, in reply to a note addressed by us to you on the 28th of the same month, as commissioners from South Carolina.

In reference to the declaration with which your reply commences, that "your position as President of the United States was clearly defined in the message to Congress of the 3d instant," that you possess "no power to change the relations heretofore existing between South Carolina and the United States, much less to acknowledge the independence of that State"; and that, consequently, you could meet us only as private gentlemen of the highest character, with an entire willingness to communicate to Congress any proposition we might have to make, we deem it only necessary to say that, the State of South Carolina having, in the exercise of that great right of self-government which underlies all our political organizations, declared herself sovereign and independent, we, as her representatives, felt no special solicitude as to the character in which you might recognize us. Satisfied that the State had simply exercised her unquestionable right, we were prepared, in order to reach substantial good, to waive the formal considerations which your constitutional scruples might have prevented you from extending. We came here, therefore, expecting to be received as you did receive us, and perfectly content with that entire willingness of which you assured us, to submit any proposition to Congress which we might have to make upon the subject of the independence of the State. That willingness was ample recognition of the condition of public affairs which rendered our presence necessary. In this position, however, it is our duty, both to the State which we represent and to ourselves, to correct several important misconceptions of our letter into which you have fallen.

You say, "It was my earnest desire that such a disposition might be made of the whole subject by Congress, who alone possesses the power to prevent the inauguration of a civil war between the parties in regard to the possession of the Federal forts in the harbor of Charleston; and I, therefore, deeply regret that, in your opinion, 'the events of the last twenty-four hours render this impossible.'" We expressed no such opinion, and the language which you quote as ours is altered in its sense by the omission of a most important part of the sentence. What we did say was, "But the events of the last twenty-four hours render such an assurance impossible." Place that "assurance," as contained in our letter, in the sentence, and we are prepared to repeat it.

Again, professing to quote our language, you say: "Thus the authorities of South Carolina, without waiting or asking for any explanation, and doubtless believing, as you have expressed it, that the officer had acted not only without, but against my orders," etc. We expressed no such opinion in reference to the belief of the people of South Carolina. The language which you have quoted was applied solely and entirely to our assurance, obtained here, and based, as you well know, upon your own declaration—a declaration which, at that time, it was impossible for the authorities of South Carolina to have known. But, without following this letter into all its details, we propose only to meet the chief points of the argument.

Some weeks ago, the State of South Carolina declared her intention, in the existing condition of public affairs, to secede from the United States. She called a convention of her people to put her declaration in force. The Convention met and passed the ordinance of secession. All this you anticipated, and your course of action was thoroughly considered. In your annual message you declared that you had no right, and would not attempt, to coerce a seceding State, but that you were bound by your constitutional oath, and would defend the property of the United States within the borders of South Carolina, if an attempt was made to take it by force. Seeing very early that this question of property was a difficult and delicate one, you manifested a desire to settle it without collision. You did not reenforce the garrisons in the harbor of Charleston. You removed a distinguished and veteran officer from the command of Fort Moultrie, because he attempted to increase his supply of ammunition. You refused to send additional troops to the same garrison when applied for by the officer appointed to succeed him. You accepted the resignation of the oldest and most eminent member of your Cabinet, rather than allow these garrisons to be strengthened. You compelled an officer stationed at Fort Sumter to return immediately to the arsenal forty muskets which he had taken to arm his men. You expressed, not to one, but to many, of the most distinguished of our public characters, whose testimony will be placed upon the record whenever it is necessary, your anxiety for a peaceful termination of this controversy, and your willingness not to disturb the military status of the forts, if commissioners should be sent to the Government, whose communications you promised to submit to Congress. You received and acted on assurances from the highest official authorities of South Carolina, that no attempt would be made to disturb your possession of the forts and property of the United States, if you would not disturb their existing condition until commissioners had been sent, and the attempt to negotiate had failed. You took from the members of the House of Representatives a written memorandum that no such attempt should be made, "provided that no reenforcements shall be sent into those forts, and their relative military status shall remain as at present." And, although you attach no force to the acceptance of such a paper, although you "considered it as nothing more in effect than the promise of highly honorable gentlemen," as an obligation on one side without corresponding obligation on the other, it must be remembered (if we are rightly informed) that you were pledged, if you ever did send reenforcements, to return it to those from whom you had received it before you executed your resolution. You sent orders to your officers, commanding them strictly to follow a line of conduct in conformity with such an understanding.

Besides all this, you had received formal and official notice, from the Governor of South Carolina, that we had been appointed commissioners and were on our way to Washington. You knew the implied condition under which we came; our arrival was notified to you, and an hour appointed for an interview. We arrived in Washington on Wednesday, at three o'clock, and you appointed an interview with us at one the next day. Early on that day, Thursday, the news was received here of the movement of Major Anderson. That news was communicated to you immediately, and you postponed our meeting until half-past two o'clock on Friday, in order that you might consult your Cabinet. On Friday we saw you, and we called upon you then to redeem your pledge. You could not deny it. With the facts we have stated, and in the face of the crowning and conclusive fact that your Secretary of War had resigned his seat in the Cabinet, upon the publicly avowed ground that the action of Major Anderson had violated the pledged faith of the Government, and that unless the pledge was instantly redeemed he was dishonored, denial was impossible; you did not deny it. You do not deny it now, but you seek to escape from its obligations on two grounds: 1. That we terminated all negotiation by demanding, as a preliminary, the withdrawal of the United States troops from the harbor of Charleston; and, 2. That the authorities of South Carolina, instead of asking explanation and giving you the opportunity to vindicate yourself, took possession of other property of the United States. We will examine both.

In the first place, we deny positively that we have ever, in any way, made any such demand. Our letter is in your possession; it will stand by this on the record. In it we inform you of the objects of our mission. We say that it would have been our duty to assure you of our readiness to commence negotiations with the most earnest and anxious desire to settle all questions between us amicably, and to our mutual advantage, but that events had rendered that assurance impossible. We stated the events, and we said that, until some satisfactory explanation of these events was given us, we could not proceed; and then, having made this request for explanation, we added: "And, in conclusion, we would urge upon you the immediate withdrawal of the troops from the harbor of Charleston. Under present circumstances they are a standing menace, which renders negotiation impossible," etc. "Under present circumstances!" What circumstances? Why, clearly the occupation of Fort Sumter, and the dismantling of Fort Moultrie by Major Anderson, in the face of your pledges, and without explanation or practical disavowal. And there is nothing in the letter which would or could have prevented you from declining to withdraw the troops, and offering the restoration of the status to which you were pledged, if such had been your desire. It would have been wiser and better, in our opinion, to have withdrawn the troops, and this opinion we urged upon you, but we demanded nothing but such an explanation of the events of the last twenty-four hours as would restore our confidence in the spirit with which the negotiation should be conducted. In relation to this withdrawal of the troops from the harbor, we are compelled, however, to notice one passage of your letter. Referring to it, you say: "This I can not do; this I will not do. Such an idea was never thought of by me in any possible contingency. No allusion to it had ever been made in any communication between myself and any human being."

In reply to this statement, we are compelled to say that your conversation with us left upon our minds the distinct impression that you did seriously contemplate the withdrawal of the troops from Charleston Harbor. And, in support of this impression, we would add that we have the positive assurance of gentlemen of the highest possible public reputation and the most unsullied integrity—men whose name and fame, secured by long service and patriotic achievement, place their testimony beyond cavil—that such suggestions had been made to and urged upon you by them, and had formed the subject of more than one earnest discussion with you. And it was this knowledge that induced us to urge upon you a policy which had to recommend it its own wisdom and the weight of such authority. As to the second point, that the authorities of South Carolina, instead of asking explanations, and giving you the opportunity to vindicate yourself, took possession of other property of the United States, we would observe, first, that, even if this were so, it does not avail you for defense, for the opportunity for decision was afforded you before these facts occurred. We arrived in Washington on Wednesday. The news from Major Anderson reached here early on Thursday, and was immediately communicated to you. All that day, men of the highest consideration—men who had striven successfully to lift you to your great office—who had been your tried and true friends through the troubles of your Administration—sought you and entreated you to act—to act at once. They told you that every hour complicated your position. They only asked you to give the assurance that, if the facts were so—if the commander had acted without and against your orders, and in violation of your pledges—you would restore the status you had pledged your honor to maintain.

You refused to decide. Your Secretary of War—your immediate and proper adviser in this whole matter—waited anxiously for your decision, until he felt that delay was becoming dishonor. More than twelve hours passed, and two Cabinet meetings had adjourned before you knew what the authorities of South Carolina had done, and your prompt decision at any moment of that time would have avoided the subsequent complications. But, if you had known the acts of the authorities of South Carolina, should that have prevented your keeping your faith? What was the condition of things? For the last sixty days, you have had in Charleston Harbor not force enough to hold the forts against an equal enemy. Two of them were empty; one of those two, the most important in the harbor. It could have been taken at any time. You ought to know, better than any man, that it would have been taken, but for the efforts of those who put their trust in your honor. Believing that they were threatened by Fort Sumter especially, the people were, with difficulty, restrained from securing, without blood, the possession of this important fortress. After many and reiterated assurances given on your behalf, which we can not believe unauthorized, they determined to forbear, and in good faith sent on their commissioners to negotiate with you. They meant you no harm, wished you no ill. They thought of you kindly, believed you true, and were willing, as far as was consistent with duty, to spare you unnecessary and hostile collision. Scarcely had their commissioners left, than Major Anderson waged war. No other words will describe his action. It was not a peaceful change from one fort to another; it was a hostile act in the highest sense—one only justified in the presence of a superior enemy and in imminent peril. He abandoned his position, spiked his guns, burned his gun-carriages, made preparations for the destruction of his post, and withdrew under cover of the night to a safer position. This was war. No man could have believed (without your assurance) that any officer could have taken such a step, "not only without orders, but against orders." What the State did was in simple self-defense; for this act, with all its attending circumstances, was as much war as firing a volley; and, war being thus begun, until those commencing it explained their action, and disavowed their intention, there was no room for delay; and, even at this moment, while we are writing, it is more than probable, from the tenor of your letter, that reenforcements are hurrying on to the conflict, so that, when the first gun shall be fired, there will have been, on your part, one continuous consistent series of actions commencing in a demonstration essentially warlike, supported by regular reenforcement, and terminating in defeat or victory. And all this without the slightest provocation; for, among the many things which you have said, there is one thing you can not say—you have waited anxiously for news from the seat of war, in hopes that delay would furnish some excuse for this precipitation. But this "tangible evidence of a design to proceed to a hostile act, on the part of the authorities of South Carolina" (which is the only justification of Major Anderson), you are forced to admit "has not yet been alleged." But you have decided. You have resolved to hold by force what you have obtained through our misplaced confidence, and, by refusing to disavow the action of Major Anderson, have converted his violation of orders into a legitimate act of your Executive authority. Be the issue what it may, of this we are assured, that, if Fort Moultrie has been recorded in history as a memorial of Carolina gallantry, Fort Sumter will live upon the succeeding page as an imperishable testimony of Carolina faith.

By your course you have probably rendered civil war inevitable. Be it so. If you choose to force this issue upon us, the State of South Carolina will accept it, and, relying upon Him who is the God of justice as well as the God of hosts, will endeavor to perform the great duty which lies before her, hopefully, bravely, and thoroughly.

Our mission being one for negotiation and peace, and your note leaving us without hope of a withdrawal of the troops from Fort Sumter, or of the restoration of the status quo existing at the time of our arrival, and intimating, as we think, your determination to reenforce the garrison in the harbor of Charleston, we respectfully inform you that we propose returning to Charleston on to-morrow afternoon.

We have the honor to be, sir, very respectfully, your obedient servants,

R. W. BARNWELL, } J. H. ADAMS, } Commissioners. JAMES L. ORR, }

To his Excellency the President of the United States.

The last communication is endorsed as follows:

Executive Mansion, 31/2 o'clock, Wednesday.

This paper, just presented to the President, is of such a character that he declines to receive it.



APPENDIX H.

Speech on the state of the country, by Mr. Davis, of Mississippi, in the Senate of the United States, January 10, 1861—a motion to print the special message of the President of the United States, of January 9th, being under consideration.

Mr. Davis: Mr. President, when I took the floor yesterday, I intended to engage somewhat in the argument which has heretofore prevailed in the Senate upon the great questions of constitutional right, which have divided the country from the beginning of the Government. I intended to adduce some evidences, which I thought were conclusive, in favor of the opinions which I entertain; but events, with a current hurrying on as it progresses, have borne me past the point where it would be useful for me to argue, by the citing of authorities, the question of rights. To-day, therefore, it is my purpose to deal with events. Abstract argument has become among the things that are past. We have to deal now with facts; and, in order that we may meet those facts and apply them to our present condition, it is well to inquire what is the state of the country. The Constitution provides that the President shall, from time to time, communicate information on the state of the Union. The message which is now under consideration gives us very little, indeed, beyond that which the world—less, indeed, than reading men generally—knew before it was communicated.

What, Senators, to-day is the condition of the country? From every corner of it comes the wailing cry of patriotism, pleading for the preservation of the great inheritance we derived from our fathers. Is there a Senator who does not daily receive letters appealing to him to use even the small power which one man here possesses to save the rich inheritance our fathers gave us? Tears are trickling down the stern faces of men who have bled for the flag of their country, and are willing now to die for it; but patriotism stands powerless before the plea that the party about to come into power laid down a platform, and that come what will, though ruin stare us in the face, consistency must be adhered to, even though the Government be lost.

In this state of the case, then, we turn and ask, What is the character of the Administration? What is the Executive department doing? What assurance have we there for the safety of the country? But we come back from that inquiry with a mournful conviction that feeble hands now hold the reins of state; that drivelers are taken in as counselors, not provided by the Constitution; that vacillation is the law; and the policy of this great Government is changed with every changing rumor of the day; nay, more, it is changing with every new phase of causeless fear. In this state of the case, after complications have been introduced into the question, after we were brought to the verge of war, after we were hourly expecting by telegraph to learn that the conflict had commenced, after nothing had been done to insure the peace of the land, we are told in this last hour that the question is thrown at the door of Congress, and here rests the responsibility.

Had the garrison at Charleston, representing the claim of the Government to hold the property in a fort there, been called away thirty days, nay, ten days ago, peace would have spread its pinions over this land, and calm negotiation would have been the order of the day. Why was it not recalled? No reason yet has been offered, save that the Government is bound to preserve its property; and yet look from North to South, from East to West, wherever we have constructed forts to defend States against a foreign foe, and everywhere you find them without a garrison, except at a few points where troops are kept for special purposes; not to coerce or to threaten a State, but stationed in seacoast fortifications, there merely for the purposes of discipline and instruction as artillerists. You find all the other forts in the hands of fort-keepers and ordnance-sergeants, and, before a moral and patriotic people, standing safely there as the property of the country.

I asked in this Senate, weeks ago: "What causes the peril that is now imminent at Fort Moultrie; is it the weakness of the garrison?" and then I answered, "No, it is its presence, not its weakness." Had an ordnance-sergeant there represented the Federal Government, had there been no troops, no physical power to protect it, I would have pledged my life upon the issue that no question ever would have been made as to its seizure. Now, not only there, but elsewhere, we find movements of troops further to complicate this question, and probably to precipitate us upon the issue of civil war; and, worse than all, this Government, reposing on the consent of the governed; this Government, strong in the affections of the people; this Government (I describe it as our fathers made it) is now furtively sending troops to occupy positions lest "the mob" should seize them. When before in the history of our land was it that a mob could resist the sound public opinion of the country? When before was it that an unarmed magistrate had not the power, by crying, "I command the peace," to quell a mob in any portion of the land? Yet now we find, under cover of night, troops detached from one position to occupy another. Fort Washington, standing in its lonely grandeur, and overlooking the home of the Father of his Country, near by the place where the ashes of Washington repose, built there to prevent a foreign foe from coming up the Potomac with armed ships to take the capital—Fort Washington is garrisoned by marines sent secretly away from the navy yard at Washington. And Fort McHenry, memorable in our history as the place where, under bombardment, the star-spangled banner floated through the darkness of night, the point which was consecrated by our national song—Fort McHenry, too, has been garrisoned by a detachment of marines, sent from this place in an extra train, and sent under cover of the night, so that even the mob should not know it.

Senators, the responsibility is thrown at the door of Congress. Let us take it. It is our duty in this last hour to seize the pillars of our Government and uphold them, though we be crushed in the fall. Then what is our policy? Are we to drift into war? Are we to stand idly by, and allow war to be precipitated upon the country? Allow an officer of the army to make war? Allow an unconfirmed head of a department to make war? Allow a general of the army to make war? Allow a President to make war? No, sir. Our fathers gave to Congress the power to declare war, and even to Congress they gave no power to make war upon a State of the Union. It could not have been given, except as a power to dissolve the Union. When, then, we see, as is evident to the whole country, that we are drifting into a war between the United States and an individual State, does it become the Senate to sit listlessly by and discuss abstract questions, and read patchwork from the opinions of men now mingled with the dust? Are we not bound to meet events as they come before us, manfully and patriotically to struggle with the difficulties which now oppress the country?

In the message yesterday, we were even told that the District of Columbia was in danger. In danger of what? From whom comes the danger? Is there a man here who dreads that the deliberations of this body are to be interrupted by an armed force? Is there one who would not prefer to fall with dignity at his station, the representative of a great and peaceful Government, rather than to be protected by armed bands? And yet the rumor is—and rumors seem now to be so authentic that we credit them rather than other means of information—that companies of artillery are to be quartered in this city to preserve peace, where the laws have heretofore been supreme, and that this District is to become a camp by calling out every able-bodied man within its limits to bear arms under the militia law. Are we invaded? Is there an insurrection? Are there two Senators here who would not be willing to go forth as a file, and put down any resistance which showed itself in this District against the Government of the United States? Is the reproach meant against these, my friends from the South, who advocate Southern rights and State rights? If so, it is a base slander. We claim our rights under the Constitution; we claim our rights reserved to the States; and we seek by no brute force to gain any advantage which the law and the Constitution do not give us. We have never appealed to mobs. We have never asked for the army and the navy to protect us. On the soil of Mississippi, not the foot of a Federal soldier has been impressed since 1819, when, flying from the yellow fever, they sought refuge within the limits of our State; and on the soil of Mississippi there breathes not a man who asks for any other protection than that which our Constitution gives us, that which our strong arms afford, and the brave hearts of our people will insure in every contingency.

Senators, we are rapidly drifting into a position in which this is to become a government of the army and navy; in which the authority of the United States is to be maintained, not by law, not by constitutional agreement between the States, but by physical force; and will you stand still and see this policy consummated? Will you fold your arms, the degenerate descendants of those men who proclaimed the eternal principle that government rests on the consent of the governed; and that every people have a right to change, modify, or abolish a government when it ceases to answer the ends for which it was established, and permit this Government imperceptibly to slide from the moorings where it was originally anchored, and become a military despotism? It was well said by the Senator from New York [Mr. Seward], whom I do not now see in his seat—well said in a speech wherein I found but little to commend—that this Union could not be maintained by force, and that a Union of force was a despotism. It was a great truth, come from what quarter it may. That was not the Government instituted by our fathers; and against it, so long as I live, with heart and hand, I will rebel.

This brings me to a passage in the message which says:

"I certainly had no right to make aggressive war upon any State; and I am perfectly satisfied that the Constitution has wisely withheld that power even from Congress"—very good—"but the right and the duty to use military force defensively against those who resist the Federal officers in the exercise of their legal functions, and against those who assail the power of the Federal Government, are clear and undeniable."

Is it so? Where does he get it? Our fathers were so jealous of a standing army, that they scarcely would permit the organization and maintenance of any army! Where does he get the "clear and undeniable" power to use the force of the United States in the manner he there proposes? To execute a process, troops may be summoned in a posse comitatus; and here, in the history of our Government, it is not to be forgotten that in the earlier and, as it is frequently said, the better days of the republic—and painfully we feel that they were better indeed—a President of the United States did not recur to the army; he went to the people of the United States. Vaguely and confusedly, indeed, did the Senator from Tennessee [Mr. Johnson] bring forward the case of the great man, Washington, as one in which he had used a means which, he argued, was equivalent to the coercion of a State; for he said that Washington used the military power against a portion of a people of the State; and why might he not as well have used it against the whole State? Let me tell that Senator that the case of General Washington has no such application as he supposes. It was a case of insurrection in the State of Pennsylvania; and the very message from which he read communicated the fact that Governor Mifflin thought it was necessary to call the militia of the adjoining States to aid him. President Washington cooeperated with Governor Mifflin; he called the militia of adjoining States to cooeperate with those of Pennsylvania. He used the militia, not as a standing army. It was by the consent of the Governor; it was by his advice. It was not the invasion of the State; it was not the coercion of the State; but it was aiding the State to put down insurrection, and in the very manner provided for in the Constitution itself.

But, I ask again, what power has the President to use the army and navy except to execute process? Are we to have drum-head courts substituted for those which the Constitution and laws provide? Are we to have sergeants sent over the land instead of civil magistrates? Not so thought the elder Adams; and here, in passing, I will pay him a tribute he deserves, as the one to whom, more than any other man among the early founders of this Government, credit is due for the military principles which prevail in its organization. Associated with Mr. Jefferson originally, in preparing the rules and articles of war, Mr. Adams reverted through the long pages of history back to the empire of Rome, and drew from that foundation the very rules and articles of war which govern in our country to-day, and drew them thence because he said they had brought two nations to the pinnacle of glory—referring to the Romans and the Britons, whose military law was borrowed from them. Mr. Adams, however, when an insurrection occurred in the same State of Pennsylvania, not only relied upon the militia, but his orders, through Secretary McHenry, required that the militia of the vicinage should be employed; and, though he did order troops from Philadelphia, he required the militia of the northern counties to be employed as long as they were able to execute the laws; and the orders given to Colonel McPherson, then in New Jersey, were, that Federal troops should not go across the Jersey line except in the last resort. I say, then, when we trace our history to its early foundation, under the first two Presidents of the United States, we find that this idea of using the army and the navy to execute the laws at the discretion of the President was one not even entertained, still less acted upon, in any case.

Then, Senators, we are brought to consider passing events. A little garrison in the harbor of Charleston now occupies a post which, I am sorry to say, it gained by the perfidious breach of an understanding between the parties concerned; and here, that I may do justice to one who had not the power, on this floor at least, to right himself—who has no friend here to represent him—let me say that remark does not apply to Major Anderson; for I hold that, though his orders were not so designed, as I am assured, they did empower him to go from one post to another, and to take his choice of the posts in the harbor of Charleston; but in so doing he committed an act of hostility. When he dismantled Fort Moultrie, when he burned the carriages and spiked the guns bearing upon Fort Sumter, he put Carolina in the attitude of an enemy of the United States; and yet he has not shown that there was any just cause for apprehension. Vague rumors had reached him—and causeless fear seems now to be the impelling motive of every public act—vague rumors of an intention to take Fort Moultrie. But, sir, a soldier should be confronted by an overpowering force before he spikes his guns and burns his carriages. A soldier should be confronted by a public enemy before he destroys the property of the United States lest it should fall into the hands of such an enemy. Was that fort built to make war upon Carolina? Was an armament put into it for such a purpose? Or was it built for the protection of Charleston Harbor; and was it armed to make that protection effective? If so, what right had any soldier to destroy that armament lest it should fall into the hands of Carolina?

Some time since I presented to the Senate resolutions which embodied my views upon this subject, drawing from the Constitution itself the data on which I based those resolutions. I then invoked the attention of the Senate in that form to the question as to whether garrisons should be kept within a State against the consent of that State. Clear was I then, as I am now, in my conclusion. No garrison should be kept within a State, during a time of peace, if the State believes the presence of that garrison to be either offensive or dangerous. Our army is maintained for common defense; our forts are built out of the common Treasury, to which every State contributes; and they are perverted from the purpose for which they were erected whenever they are garrisoned with a view to threaten, to intimidate, or to control a State in any respect.

Yet, we are told this is no purpose to coerce a State; we are told that the power does not exist to coerce a State; but the Senator from Tennessee [Mr. Johnson] says it is only a power to coerce individuals; and the Senator from Ohio [Mr. Wade] seems to look upon this latter power as a very harmless power in the hands of the President, though the results of such coercion might be to destroy the State. What is a State? Is it land and houses? Is it taxable property? Is it the organization of the local government? Or is it all these combined with the people who possess them? Destroy the people, and yet not make war upon the State! To state the proposition is to answer it, by reason of its very absurdity. It is like making desolation, and calling it peace. There being, as it is admitted on every hand, no power to coerce a State, I ask what is the use of a garrison within a State where it needs no defense? The answer from every candid mind must be, there is none. The answer from every patriotic breast must be, peace requires under all such circumstances that the garrison should be withdrawn. Let the Senate to-day, as the responsibility is thrown at our door, pass those resolutions, or others which better express the idea contained in them, and you have taken one long step toward peace, one long stride toward the preservation of the Government of our fathers.

The President's message of December, however, has all the characteristics of a diplomatic paper, for diplomacy is said to abhor certainty as Nature abhors a vacuum; and it was not within the power of man to reach any fixed conclusion from that message. When the country was agitated, when opinions were being formed, when we were drifting beyond the power ever to return, this was not what we had a right to expect from the Chief Magistrate. One policy or the other he ought to have taken. If believing this to be a government of force, if believing it to be a consolidated mass, and not a confederation of States, he should have said: "No State has a right to secede; every State is subordinate to the Federal Government, and the Federal Government must empower me with physical means to reduce to subjugation the State asserting such a right." If not, if a State-rights man and a Democrat—as for many years it has been my pride to acknowledge our venerable Chief Magistrate to be—then another line of policy should have been taken. The Constitution gave no power to the Federal Government to coerce a State; the Constitution gave an army for the purposes of common defense, and to preserve domestic tranquillity; but the Constitution never contemplated using that army against a State. A State exercising the sovereign function of secession is beyond the reach of the Federal Government, unless we woo her with the voice of fraternity, and bring her back to the enticements of affection. One policy or the other should have been taken; and it is not for me to say which, though my opinion is well known; but one policy or the other should have been pursued. He should have brought his opinion to one conclusion or another, and to-day our country would have been safer than it is.

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