encountered the opposition of every Republican member in both Houses of Congress: Nevertheless, it presented a basis of compromise which, had it been conceded by the North, might and probably would have been accepted by the people of the border States, in preference to the fearful alternative of their secession from the Union.

CHAPTER VIII.

Congress passes no measures to enable the President to execute the laws or defend the Government-They decline to revive the authority of the Federal Judiciary in South Carolina, suspended by the resignation of all the judicial officers-They refuse authority to call forth the militia or accept volunteers, to suppress insurrections against the United States, and it was never proposed to grant an appropriation for this purpose-The Senate declines throughout the entire session to act upon the nomination of a Collector of the Port of Charleston-Congress refuses to grant to the President the authority long since expired, which had been granted to General Jackson for the collection of the revenue-The 36th Congress expires, leaving the law just as they found it-General observations.

WE have already seen that Congress, throughout the entire session, refused to adopt any measures of compromise to prevent civil war, or to retain first the cotton or afterwards the border States within the Union. Failing to do this, and whilst witnessing the secession of one after another of the cotton States, the withdrawal of their Senators and Representatives, and the formation of their Confederacy, it was the imperative duty of Congress to furnish the President or his successor the means of repelling force by force, should this become necessary to preserve the Union. They, nevertheless, refused to perform this duty with as much pertinacity as they had manifested in repudiating all measures of compromise.

1. At the meeting of Congress a Federal Judiciary had ceased to exist in South Carolina. The District Judge, the District Attorney, and the United States Marshal had resigned their offices. These ministers of justice had all deserted their posts before the act of secession, and the laws of the United States could no longer be enforced through their agency. We have already seen that the President, in his message, called the

attention of Congress to this subject, but no attempt was made in either House to provide a remedy for the evil.

2. Congress positively refused to pass a law conferring on the President authority to call forth the militia, or accept the services of volunteers, to suppress insurrections which might occur in any State against the Government of the United States. It may appear strange that this power had not long since been vested in the Executive. The Act of February 28, 1795,* the only law applicable to the subject, provides alone for calling forth the militia to suppress insurrections against State Governments, without making any similar provision for suppressing insurrections against the Government of the United States. If any thing were required beyond a mere inspection of the act to render this clear, it may be found in the opinion of AttorneyGeneral Black, of the 20th November, 1860. Indeed it is a plain casus omissus. This palpable omission, which ought to have been instantly supplied, was suffered to continue until after the end of Mr. Buchanan's administration, when on the 29th July, 1861, Congress conferred this necessary power on the President.† The framers of the Act of 1795 either did not anticipate an insurrection within any State against the Federal Government, or if they did, they purposely abstained from providing for it. Even in regard to insurrections against a State Government, so jealous were they of any interference on the part of the Federal Government with the rights of the States, that they withheld from Congress the power to protect any State "against domestic violence," except "on the application of the Legislature, or of the Executive (when the Legislature cannot be convened)." Under the Act of 1795, therefore, the President is precluded from acting even upon his own personal and absolute knowledge of the existence of such an insurrection. Before he can call forth the militia for its suppression, he must first be applied to for this purpose by the appropriate State authorities, in the manner prescribed by the Constitution. It was the duty of Congress, immediately after their meeting, to supply this defect in our laws, and to confer an absolute authority on the President to call forth the militia, and accept the services of volun* 1 Stat. at Large, p. 424. † 12 U. S. Stat. at Large, p. 281.

teers, to suppress insurrections against the United States, whenever or wherever they might occur. This was a precautionary measure which, independently of existing dangers, ought long since to have formed a part of our permanent legislation. But no attempt was ever made in Congress to adopt it until after the President's special message of the 8th January, 1861, and then the attempt entirely failed. Meanwhile the aspect of public affairs had become more and more threatening. Mr. Crittenden's amendment had been defeated before the Committee' of Thirteen, on the last day of December; and it was also highly probable that his proposition before the Senate to refer it to a vote of the people of the States, would share the same fate. South Carolina and Florida had already seceded, and the other cotton States had called Conventions for the purpose of seceding. Nay, more, several of them had already seized the forts, magazines, and arsenals within their limits. Still all this failed to produce any effect upon Congress. It was at this crisis the President sent his special message to Congress (8th January, 1861), by which he endeavored to impress them with the necessity for immediate action. He concealed nothing from them. Whilst still clinging to the fading hope that they might yet provide for a peaceful adjustment of our difficulties, and strongly recommending this course, he says: "Even now the danger is upon us. In several of the States which have not yet seceded, the forts, arsenals, and magazines of the United States have been seized. This is by far the most serious, step which has been taken since the commencement of the troubles. * * * The seizure of this property, from all appearances, has been purely aggressive, and not in resistance to any attempt to coerce a State or States to remain in the Union." He also stated the well-known fact that our small army was on the remote frontiers, and was scarcely sufficient to guard the inhabitants against Indian incursions, and consequently our forts were without sufficient garrisons.

Under these circumstances he appeals to Congress in the following language: "But the dangerous and hostile attitude of the States toward each other has already far transcended and cast in the shade the ordinary executive duties already provided for

by law, and has assumed such vast and alarming proportions as to place the subject entirely above and beyond executive control. The fact cannot be disguised that we are in the midst of a great revolution. In all its various bearings, therefore, I commend the question to Congress, as the only human tribunal, under Providence, possessing the power to meet the existing emergency. To them exclusively belongs the power to declare war, or to authorize the employment of military force in all cases contemplated by the Constitution; and they alone possess the power to remove grievances which might lead to war, and to secure peace and union to this distracted country. On them, and on them alone, rests the responsibility."

Congress might, had they thought proper, have regarded the forcible seizure of these forts and other property, including that of the Branch Mint at New Orleans with all the treasure it contained, as the commencement of an aggressive war. Beyond question the cotton States had now committed acts of open hostility against the Federal Government. They had always contended that secession was a peaceful constitutional remedy, and that Congress had no power to make war against a sovereign State for the purpose of coercing her to remain in the Union. They could no longer shelter themselves under this plea. They had by their violent action entirely changed the position they had assumed; and instead of peacefully awaiting the decision of Congress on the question of coercion, they had themselves become the coercionists and assailants. This question had, therefore, passed away. No person has ever doubted the right or the duty of Congress to pass laws enabling the President to defend the Union against armed rebellion. Congress, however, still shrunk from the responsibility of passing any such laws. This might have been commendable had it proceeded from a sincere desire not to interpose obstacles to a compromise intended to prevent the effusion of fraternal blood and restore the Union. Still in any event the time had arrived when it was their duty to make at the least contingent provisions for the prosecution of the war, should this be rendered inevitable. This had become the more necessary as Congress would soon expire, and the new Congress could not be convened for a considerable period after the