Part 3

Why it was that the bombardment, on April 12, 1861, of a Federal _fort_ about to be reenforced "fired the Northern heart" more than the bombardment, on January 9, 1861, of a Federal _war-ship_ attempting to carry reinforcements to that fort, the Northern historians, like the Pharisees, "cannot tell." And they never tell that between the two bombardments sectional monopoly had brooded, and on March 2d hatched a cockatrice egg of sectional advantage; that its beneficiaries had had opportunity to touch noses with the "seven war Governors" and that the inspiration of such a touch accounts for the zeal with which they urged the President to war, when twenty-one States were trying to effect peace; that between the 15th and the 28th of March these Governors had a secret conference with the President in Washington, in which they pledged their States to support him in "collecting the revenues of the Government"; and that, thus assured, he had, to the astonishment of the South and most of his own constituents, suddenly sent the invading expedition to reenforce Fort Sumter! Did this same influence persuade Lincoln to refuse to allow the Supreme Court or even Congress to pass upon the much-mooted constitutional question of the right to secede? Of course it was familiar learning to him that all the States, especially the Northeastern, had from time to time asserted, acted on, or acquiesced in this right. Did the tariff Governors induce this man, reputed to be tender-hearted, to decide, on his own responsibility, a question of law which forced the issue of blood at a cost of a million lives, and a sinister change in the character and conduct of our government? Did they seduce him into fitting out an armament to collect the revenues at Charleston, and, at the same time, leave open for construction and equivocation his doubtful and inconsistent expressions about enforcing the Federal laws and Supreme Court decisions giving protection to Southern property in slaves? Why was it that, in this awful crisis, he refused to call Congress together until he had precipitated war by his invasion and his call for volunteers, unless it was because his extra-constitutional advisers feared to trust a body which passed a conciliatory resolution even after battles had been fought and blood had been shed? Why was it that by the very terms of his war proclamation he put off the assembling of Congress for two months and nineteen days after he had declared war, unless it was because he was willing to forestall its action, and preferred to rely on the conspiring war Governors and their protected constituents to sustain him, rather than on his constitutional advisers and the Representatives of the people? Monopoly could not then trust the Supreme Court, for the Dred Scott decision showed that it might again adhere to the original view of the Constitution; and its best members were zealous to effect compromise and peace. That Lincoln and his Cabinet were against the policy of coercion, until somebody influenced them, has been confessed by at least one of its members.

A valuable side-light on the mainsprings of Lincoln's policy is furnished by Dr. R. L. Dabney. He says that while Virginia, through her convention, sitting in April, 1861, was making a last effort to save the Union, Seward sent a confidential messenger, Allen B. McGruder, to Richmond, to urge that a representative be sent to Washington in all haste. McGruder stated that he was authorized by Seward to say that Fort Sumter would be evacuated on Friday of the ensuing week and that the _Pawnee_ would sail on the following Monday for Charleston to effect the evacuation. Colonel Baldwin, an original Union man, was fixed upon as the best representative of the peace sentiment. "He and McGruder," continues Dabney, "set out on the night following and arrived in Washington early the next morning. Immediately after breakfast they drove to Mr. Seward's, when the latter took charge of Mr. Baldwin, and the two went directly to the White House, where they arrived about nine o'clock. They found Mr. Lincoln engaged, but, upon Mr. Seward's whispering in his ear, he excused himself and conducted Mr. Seward and Colonel Baldwin into a sleeping apartment and locked the door.

"After the usual formalities, Colonel Baldwin presented his credentials. After Lincoln had read the credentials, Colonel Baldwin proceeded to state to him what was the opinion of the great body of Virginians, both in the convention and out of it. This opinion was as follows, to wit: 'That although opposed to a Presidential election upon a sectional free-soil platform, which they deplored as most dangerous and unwise, Virginia did not approve of making that, evil as it was, a _casus belli_, or a ground for disrupting the Union. That much as Virginia disapproved of it, if Mr. Lincoln would only adhere faithfully to the Constitution and the laws, she would support him just as faithfully as though he was the man of her choice, and would wield her whole moral force to keep the border States in the Union, and to bring back the seven seceded States; but that, while much difference of opinion existed on the question whether the right of secession was a constitutional one, all Virginians were unanimous in believing that no right existed in the Federal Government to coerce a state by force of arms.' To this Mr. Lincoln replied: 'You are too late, sir; _too late_!' Colonel Baldwin understood this as a clear intimation that the policy of coercion had just been determined upon, and, as he discovered, "_within four days_." Impressed with the deep solemnity of the occasion, Colonel Baldwin made a final appeal, asking, among other things, that all questions at issue should be left for adjudication by the constitutional tribunals. Lincoln asked a few questions, the last of which was, "What will become of my tariff?" He put this question with such force of emphasis as clearly indicated that this consideration should decide the whole matter.

The peace ambassadors sent to Washington by the Virginia convention immediately upon Baldwin's return found the same difficulty. "They saw Mr. Lincoln. The tariff was still the burden of his complaint. They left the next day; and the same train which carried them to Virginia carried Lincoln's proclamation also for the seventy-five thousand troops." See _North Carolina in the War Between the States_, by Sloan, pp. 27, 28, 29, 30, quoting R. L. Dabney, in the _Southern Historical Papers_.

There was a subtle influence at Washington strong enough to veer Lincoln round from Seward, whose constituents dreaded war, to Thad. Stevens, who represented in Congress the Pennsylvania iron interest, and, in his character and person, the worst element of the worst politics that America ever saw.

Lincoln had no warrant in the Constitution for calling out the militia against the seceded States. "The Congress shall have power to declare war" (Article I, section 8, clause 11); and "The Congress shall have power to raise and support armies" (Article I, section 8, clause 12); and if, in violation of standard definition and contrary to the fact, it be said that what he inaugurated was not war, but was only an armed effort to put down insurrection, the Constitution, Article I, section 8, clause 15, replies: "The Congress shall have power to provide for the calling out of the militia to execute the laws of the Union, suppress insurrections and repel invasions." So the only warrant the President had was an old act of Congress, passed February 28, 1795, shortly after the Whiskey Insurrection. This act provided: "That whenever the laws of the United States shall be opposed in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or the power vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State or of any other State or States, as may be necessary to suppress such combinations and cause the laws to be duly executed." No pretense of authority was given when a State or a combination of States opposed the United States. His construction forestalled Congress and robbed it of its exclusive right and power to "declare war," and made him the sole arbiter to dictate the nation's weal or woe.

As a matter of fact, this law, thus misconstrued, was obsolete, and so marked in the reprint of the United States Statutes at Large, in 1845, authorized by Congress. Lincoln, then, "by and with the advice and consent" of interested persons, utterly ignoring the two coordinate branches of government, unearthed for the purpose of inaugurating a most frightful war an old statute, unused from the time of its passage, and standing on the authoritative Revised Statutes marked "obsolete" for sixteen years--so received by the lawyers, and unchallenged by Congress or any member thereof.

It is no wonder that Congress, when it did assemble, in July, 1861, and found war a fact accomplished and armies already threatening Washington, should have made haste to validate the President's high-handed measures and strengthen his precarious position by an act of which section three is as follows: "That all the acts, proclamations, and orders, of the President of the United States, after the 4th of March, 1861, respecting the army and navy of the United States, and the calling out, or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid to the same intent and with the same effect as if they had been issued and done under previous express authority and direction of the Congress of the United States." The marginal note of the printed laws points this act specially to the proclamation of April 15, 1861, calling out the militia.

In suppressing the Whiskey Insurrection Washington acted under the "previous express authority of Congress," then lately given, "cautiously in his delicate duty," while Hamilton "was pressing for the collection of the revenue," says history. The act under which the militia was then called out, passed in 1792, required a Federal judge to certify the fact of the insurrection, and Washington took care to arm himself with the certificate of a Supreme Court Justice. The act under which _Lincoln_ proceeded, an epitome of the former, shows on its face that it was also, when in force, in aid exclusively of court proceedings, and operative only when a Federal judge should call upon the President to assist the United States Marshals, who were purely court officers. Any other construction gives the President "the power to suppress insurrections," and the "power to declare war"; and, when war is declared the Constitution places him in command of the army and militia: so nothing would be left for Congress but to vote supplies and validate his acts, as it did Lincoln's usurpations!

Though the militia had often been needed, and sometimes called out for troubles, domestic and foreign, no President of the United States, until Lincoln, had ever issued such a call unless expressly authorized by Congress, in special acts of limited duration, which have usually specified the number of troops wanted and the term of service required. It is no wonder then that an act, treated as a dead letter since the suppression of the Whiskey Insurrection, should have been marked "obsolete" by the government publisher, with the sanction of Congress.

Unless Madison's refusal to recommend a policy of coercion against the New England States, successfully resisting the drafts for the defense of the nation in the War of 1812, be regarded as a precedent, Lincoln had but one, directly in point, and that was furnished by President Jackson in the case of South Carolina's nullification of Federal law in 1832. Jackson's zeal for the Union could not be doubted; and, in spite of his military training and arbitrary temper, he found a remedy which saved the Union without bloodshed.

On December 10, 1832, after South Carolina had nullified the tariff act, proceeded to provide a separate government, notified the President, and begun to arm and organize its militia for defense, Jackson issued a proclamation in which he besought, and threatened, and promised. Failing by such means to induce the tariff-plundered planters of the plucky little State to recede from their position, on the assembling of Congress he recommended the removal of the cause of the trouble, expressing his belief that such action would shortly put an end to resistance. Nullification still continuing, Jackson (a month later) wrote his famous message, in which he called attention to the magnitude of the opposition, and recommended to Congress to provide by law: "That in case of an attempt otherwise [than by process from the ordinary judicial tribunals of the United States] to take property [from the custody of the law] by a force too great to be overcome by the officers of the customs, it should be lawful to protect the possessions of the officers by the employment of the land and naval forces and militia under provisions similar to those authorized by the eleventh section of the Act of January 9, 1809." After recommending the revival of other expired acts to facilitate and protect the collection of the revenues and execution of Federal law, he said further: "Provisions less than these--consisting, as they do, for the most part, rather of a revival of the policy of former acts called for by the [then] existing emergency, than of the introduction of any unusual or rigorous enactments--would not cause the laws of the Union to be properly respected or enforced. It is believed that these would prove adequate unless the military forces of the State of South Carolina, authorized by the late act of the Legislature, should be actually embodied and called out in aid of their proceedings, and of the provisions of the ordinance generally. Even in that case, however, it is believed that no more will be necessary than a few modifications of its terms to adapt the Act of 1795 to the present emergency, as by that act the provisions of the Act of 1792 were accommodated to the crisis then existing; and, by conferring authority upon the President, to give it operation during the session of Congress, and without the ceremony of a proclamation, whenever it shall be officially made known to him by the authority of any State, or by the courts of the United States, that, within the limits of such State, the laws of the United States will be openly opposed and their execution obstructed by the actual employment of military force, or by any unlawful means, whatever, too great to be otherwise overcome."

Pursuant to these recommendations, Congress passed, March 2, 1833, the "force bill," or "bloody bill," as it was called; and the section which made it infamous in the unprotected States was as follows: "Sec. 5. And be it further enacted, that whenever the President of the United States shall be officially informed by the authorities of any State, or by a judge of any Circuit or District Court of the United States in the State, that within the limits of such State any law or laws of the United States, or the execution thereof, or of any process from the courts of the United States is obstructed by the employment of military force, or by any other unlawful means too great to be overcome by the ordinary course of judicial proceedings or by the power vested in the marshals by existing laws, it shall be lawful for him, the President of the United States, forthwith to issue his proclamation declaring such fact or information, and requiring all such military or other force forthwith to disperse; and if, at any time after issuing such proclamation, any such opposition or obstruction shall be made in the manner or by the means aforesaid, the President shall be and hereby is authorized promptly to employ such means to suppress the same, and to cause said laws or process to be duly executed, as are authorized and provided in the cases therein mentioned by the Act of the 28th of February, 1795, entitled: 'An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, repel invasions, and repeal the act now in force for that purpose'; and also, by the Act of the 3d of March, 1807, entitled: 'An act authorizing the employment of the land and naval forces of the United States in cases of insurrection.'" Section 1 of the force bill authorized the President to call out the army, navy, and militia to aid in collecting the _customs_--a power which the Act of 1795 could not be construed to give. It was also provided in the act that the operation of said sections 5 and 1 should "continue until the next session of Congress, and no longer." Thus careful was Congress to limit the duration of the great powers delegated to the President, as it had usually done in other instances in which it had authorized the employment of military force. The Act of March 3, 1807, referred to in the force bill, simply gave the President authority to use the land and naval forces of the United States to assist in the execution of the laws whenever it should be lawful for him to call out the militia for the same purpose. The Act of 1795, referred to by Jackson, which he did not pretend he had a right to use against the nullifiers of the tariff act, unless it should be revived by Congress, and which he proposed should be revived, modified, and adapted to meet the emergency confronting him, in the same way Congress had formerly adapted and modified the Act of 1792 by the Act of 1795, to meet the emergency of the latter year, was the very act Lincoln used to cover his assumption of power to make war on the South without the authority of Congress! He had this precedent before him, in which the warrior Jackson, swift in defense of the nation's honor against her foreign foes, was slow to dye his hands in his brothers' blood. He had before him the act in which Congress had revived the provisions of the Act of 1795, and expressly limited the duration of that revival to the time intervening before its next session; and he was lawyer enough to know, though not learned in his profession, that the substantial reenactment and enlargement of the old act, and its repeal, or limitation to a definite period, was, after the expiration of that period, a practical repeal of both--especially when it may be seen that the one was to take the place the other took in its day. See _Tynen_ vs. _The United States_, 11 Wallace U. S. Reports, page 88; _Pana_ vs. _Bowles_, 107 U. S. Reports, page 529, and cases cited therein; _Norris_ vs. _Crocker_, 13 Howard, page 429.

Jackson, in spite of his camp association and military methods, was the embodiment of caution and conservatism, when compared to Lincoln and his "kitchen cabinet" of revenue-hunting Governors, who were as swift to declare war against their own people, under a forced construction of an old, unused, obsolete, special act, as those who now speculate in their names and fame are eager to seek treaties of partnership with our hereditary foreign foe.

They shall never, unchallenged, teach our children that Abraham Lincoln's usurpations were lawful, justified by necessity, or commended by God; lest "necessity, the plea of tyrants," or "divine right," the plea of kings and priests, or "implied powers," the plea of those who are powerful only to oppress the people and to collect and spend their revenues, should constitute the excuse for destroying the remaining safeguards of our liberties.

Those accustomed to analyze motive and conduct will note with attention that the Act of August 6, 1861, intended to legalize the call for troops, was passed after the "force bill" had been reenacted and amplified by the Acts of July 13, 29, and 31, 1861--after the President had been expressly authorized by these acts and another to accept the service of volunteers and to use the army, navy, and militia to make war upon _States and combinations of States_, as well as upon the inhabitants of districts therein--after Congress had in these acts twice gone out of its way to refer to the old Act of 1795 as still in force, and once expressly treated it as giving the authority, which had been assumed, to begin the war; and the legalizing act itself was covered under a caption which was calculated to excite as little attention as possible. The caption reads: "An act to increase the pay of privates in the regular army and in the volunteers, and for other purposes."

The Act of 1795, when in force, gave the President no authority to determine when a state of insurrection existed, even in a Federal district; Congress proved that it realized this defect of power by hastening (July 13 and 29, 1861) to supply it to Lincoln--in respect to States as well as districts--a double confession of the weakness of his position.

The Act of 1795 afforded no assistance to collect customs, for the Whiskey Insurrectionists, against whom it was passed, resisted only the internal revenue taxes; Congress practically acknowledged this limitation, by Act of July 13, 1861, expressly and separately authorizing the President to use the army, navy, and militia to "collect the customs" of the United States.

"Even our enemies themselves being judges," there were doubts everywhere, and these doubts were everywhere resolved in favor of absolute authority and against the received construction of law and the Constitution.

An executive who usurps powers ought to be placed on a moral plane as much lower than that of a treasurer who embezzles public funds as the love of liberty in the minds of the virtuous is higher than the love of money.

Those who would derive Lincoln's assumed power to declare war from the clause of the Constitution which requires that the "President shall see that the laws are faithfully executed" betray the flimsy foundation upon which they would erect the throne of an autocrat. The faithful execution of the laws is to be secured in a lawful manner, under such powers as the Constitution gives or Congress may lawfully give to the President. If he is the sole judge of the extent of the powers conferred and the appropriateness of the means of execution, he does not need any other clause to make him the field-overseer of both the other departments of government; and this the Supreme Court has decided he is not. _Tyndall_ vs. _The United States_, 12 Peters, p. 524. Lincoln did not rely upon this clause, but upon the Act of 1795, the language of which he quoted in his call for the militia of the States; and Congress, by the fifth section of the Act of July 13, 1861, showed very plainly that it recognized that he had professed to act under the Statute of 1795.

The frightful experiences of the civil war and the serpent-brood of evils which have since followed in its trail are plenary proof that the fathers were wise in not lodging the war power in the hands of any one man.