Trial of the Officers and Crew of the Privateer Savannah on the Charge of Piracy Part 58

EXTRACTS FROM PRESIDENT LINCOLN'S INAUGURAL, MARCH 4, 1861. (_Page 110._)

The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government, and collect the duties on imports; but, beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States shall be so great and so universal as to prevent competent resident citizens from holding the federal offices, there will be no attempt to force obnoxious strangers among the people with that object. While the strict legal right may exist of the Government to enforce the exercise of these offices, the attempt to do so would be so irritating, and so nearly impracticable withal, that I deem it better to forego for the time the use of such offices. * * * * *

I do not forget the position a.s.sumed by some that const.i.tutional questions are to be decided by the Supreme Court, nor do I deny that such decision must be binding in any case upon the parties to a suit, while they are also ent.i.tled to very high respect and consideration in all parallel cases by all other departments of the Government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chances that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that, if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own masters,--having, to that extent, practically resigned their Government into the hands of that eminent tribunal. Nor is there, in this view, any a.s.sault upon the Court or the Judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

V.

THE PRESIDENT'S SPEECH TO THE VIRGINIA COMMISSIONERS. (_Page 110._)

_To Honorable Messrs. Preston, Stuart, and Randolph_:

GENTLEMEN: As a Committee of the Virginia Convention, now in session, you present me a preamble and resolution in these words:

"Whereas, in the opinion of this Convention, the uncertainty which prevails in the public mind as to the policy which the Federal Executive intends to pursue towards the seceded States is extremely injurious to the industrious and commercial interests of the country; tends to keep up an excitement which is unfavorable to the adjustment of the pending difficulties; and threatens a disturbance of the public peace; therefore--

"_Resolved_, That a committee of three delegates be appointed to wait on the President of the United States, present to him this preamble, and respectfully ask him to communicate to this Convention the policy which the Federal Executive intends to pursue in regard to the Confederate States."

In answer, I have to say, that having, at the beginning of my official term, expressed my intended policy as plainly as I was able, it is with deep regret and mortification I now learn there is great and injurious uncertainty in the public mind as to what that policy is, and what course I intend to pursue. Not having as yet seen occasion to change, it is now my purpose to pursue the course marked out in the inaugural address. I commend a careful consideration of the whole doc.u.ment as the best expression I can give to my purposes. As I then and therein said, I now repeat--"The power confided in me will be used to hold, occupy, and possess property and places belonging to the Government, and to collect the duties and imposts; but beyond what is necessary for these objects, there will be no invasion, no using of force against or among the people anywhere." By the words "property and places belonging to the Government," I chiefly allude to the military posts and property which were in possession of the Government when it came into my hands.

But if, as now appears to be true, in pursuit of a purpose to drive the United States authority from these places, an unprovoked a.s.sault has been made upon Fort Sumter, I shall hold myself at liberty to repossess, if I can, like places which had been seized before the Government was devolved upon me; and in any event I shall, to the best of my ability, repel force by force. In case it proves true that Fort Sumter has been a.s.saulted, as is reported, I shall, perhaps, cause the United States mails to be withdrawn from all the States which claim to have seceded, believing that the commencement of actual war against the Government justifies and possibly demands it. I scarcely need to say, that I consider the military posts and property situated within the States which claim to have seceded as yet belonging to the Government of the United States as much as they did before the supposed secession.

Whatever else I may do for the purpose, I shall not attempt to collect the duties and imposts by any armed invasion of any part of the country; not meaning by this, however, that I may not land a force deemed necessary to relieve a fort upon the border of the country. From the fact that I have quoted a part of the inaugural address, it must not be inferred that I repudiate any other part,--the whole of which I re-affirm, except so far as what I now say of the mails may be regarded as a modification.

VI.

EXTRACTS FROM PRESIDENT LINCOLN'S MESSAGE TO CONGRESS, JULY 4, 1861.

At the beginning of the present presidential term, four months ago, the functions of the Federal Government were found to be generally suspended within the several States of South Carolina, Georgia, Alabama, Mississippi, Louisiana, and Florida, excepting only of the post-office department. Within these States all the forts, a.r.s.enals, dockyards, custom-houses and the like, including the movable and stationary property in and about them, had been seized and were held in open hostility to this Government, excepting only Forts Pickens, Taylor, and Jefferson, on and near the Florida coast, and Fort Sumter, in Charleston harbor, South Carolina.

In accordance with this purpose, an ordinance had been adopted in each of these States, declaring the States respectively to be separated from the National Union. A formula for inst.i.tuting a combined Government of those States had been promulgated, and this illegal organization, in the character of the "Confederate States," was already invoking recognition, aid, and intervention from foreign powers.

Finding this condition of things, and believing it to be an imperative duty upon the incoming Executive to prevent, if possible, the consummation of such attempt to destroy the Federal Union, a choice of means to that end became indispensable. This choice was made, and was declared in the inaugural address.

[After reciting the measures previously taken, he continues]:

Other calls were made for volunteers to serve three years, unless sooner discharged, and also for large additions to the regular army and navy. These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity,--trusting then, as now, that Congress would readily ratify them.

It is believed that nothing has been done beyond the const.i.tutional competency of Congress. Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary process and forms of law, such individuals as he might deem dangerous to the public safety.

This authority has purposely been exercised but very sparingly.

Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to take care that the laws are faithfully executed should not himself violate them.

VII.

EXTRACTS FROM PRESIDENT BUCHANAN'S MESSAGE TO CONGRESS, DECEMBER 4, 1860.

The Fugitive-Slave Law has been carried into execution in every contested case since the commencement of the present administration, though often, it is to be regretted, with great loss and inconvenience to the master, and with considerable expense to the Government. Let us trust that the State Legislatures will repeal their unconst.i.tutional and obnoxious enactments. Unless this shall be done without unnecessary delay, it is impossible for any human power to save the Union.

The Southern States, standing on the basis of the Const.i.tution, have a right to demand this act of justice from the States of the North.

Should it be refused, then the Const.i.tution, to which all the States are parties, will have been willfully violated, in one portion of them, in a provision essential to the domestic security and happiness of the remainder. In that event, the injured States, after having first used all const.i.tutional and peaceful means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.

What, in the meantime, is the responsibility and true position of the Executive? He is bound by a solemn oath before G.o.d and the country "to take care that the laws are faithfully executed;" and from this obligation he cannot be absolved by any human power. But what if the performance of this duty, in whole or in part, has been rendered impracticable by events over which he could have exercised no control?

Such, at the present moment, is the case throughout the State of South Carolina, so far as the laws of the United States, to secure the administration of justice by means of the federal judiciary, are concerned. All the federal officers within its limits, through whose agency alone these laws can be carried into execution, have already resigned. We no longer have a District Judge, a District Attorney, or a Marshal, in South Carolina. In fact, the whole machinery of the Federal Government, necessary for the distribution of remedial justice among the people, has been demolished, and it would be difficult, if not impossible, to replace it.

The only Acts of Congress upon the Statute Book bearing on this subject are those of the 28th February, 1795, and 3d March, 1807. These authorize the President, after he shall have ascertained that the Marshal, with his posse comitatus, is unable to execute civil or criminal process in any particular case, to call forth the militia, and employ the army and navy to aid him in performing this service--having first, by proclamation, commanded the insurgents to disperse and retire peaceably to their respective homes within a limited time. This duty can not by possibility be performed in a State where no judicial authority exists to issue process, and where there is no Marshal to execute it, and where, even if there were such an officer, the entire population would const.i.tute one sole combination to resist him.

The bare enumeration of these provisions proves how inadequate they are, without further legislation, to overcome a united opposition in a single State, not to speak of other States who may place themselves in a similar att.i.tude. Congress alone has power to decide whether the present laws can or can not be amended, so as to carry out more effectually the objects of the Const.i.tution.

The course of events is so rapidly hastening forward, that the emergency may soon arise when you may be called upon to decide the momentous question, whether you possess the power, by force of arms, to compel a State to remain in the Union. I should feel myself recreant to my duty were I not to express an opinion upon this important subject.

The question, fairly stated, is: Has the Const.i.tution delegated to _Congress_ the power to coerce a State into submission which is attempting to withdraw, or has virtually withdrawn, from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection, I have arrived at the conclusion that no such power has been delegated to Congress, or to any other department of the Federal Government. It is manifest, upon an inspection of the Const.i.tution, that this is not among the specific and enumerated powers granted to Congress; and it is equally apparent that its exercise is not "necessary and proper for carrying into execution" any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Const.i.tution.

It appears, from the proceedings of that body, that on the 31st May, 1787, the clause authorizing the exertion of the force of the whole against a delinquent State came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: "The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound." Upon his motion, the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: "Any Government for the United States, founded upon the supposed practicability of using force against the unconst.i.tutional proceedings of the States, would prove as visionary and fallacious as the Government of Congress"--evidently meaning the then existing Congress of the old Confederation.

Without descending to particulars, it may be safely a.s.serted that the power to make war against a State is at variance with the whole spirit and intent of the Const.i.tution.

VIII.

PROCLAMATION OF AUGUST 16, 1861, PURSUANT TO ACT OF CONGRESS OF JULY 13, 1861.

Whereas, on the 15th day of April, the President of the United States, in view of an insurrection against the laws and Const.i.tution and Government of the United States, which had broken out within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and in pursuance of the provisions of the Act ent.i.tled "An Act to provide for calling forth the militia to execute the laws of the Union, to suppress insurrection and repel invasion, and to repeal the Act now in force for that purpose," approved February 18th, 1795, did call forth the militia to suppress said insurrection and cause the laws of the Union to be duly executed, and the insurgents having failed to disperse by the time directed by the President, and--

Whereas such insurrection has since broken out and yet exists within the States of Virginia and North Carolina, Tennessee and Arkansas, and--

Whereas the insurgents in all of the said States claim to act under authority thereof, and such claim is not disclaimed or repudiated by the person exercising the functions of Government in each State or States, or in the part or parts thereof in which combinations exist, nor has such insurrection been suppressed by said States--

Now, therefore, I, ABRAHAM LINCOLN, President of the United States, in pursuance of an Act of Congress pa.s.sed July 13th, 1861, do hereby declare that the inhabitants of the said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore named as may maintain a loyal adhesion to the Union and the Const.i.tution, or may be, from time to time, occupied and controlled by the forces engaged in the dispersion of said insurgents, are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exception aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed; that all goods and chattels, wares and merchandize, coming from any of the said States, with the exceptions aforesaid, into other parts of the United States, without a special license and permission of the President, through the Secretary of the Treasury, or proceeding to any of the said States, with the exceptions aforesaid, by land or water, together with the vessel or vehicle conveying the same, or conveying persons to or from States, with the said exceptions, will be forfeited to the United States; and that, from and after fifteen days from the issue of this proclamation, all s.h.i.+ps and vessels belonging in whole or in part to any citizen or inhabitant of any State, with the said exceptions, found at sea, or in any port of the United States, will be forfeited to the United States; and I hereby enjoin on all District Attorneys, Marshals, and officers of the revenue and of the military and naval forces of the United States, to be vigilant in the execution of said Act, and in the enforcement of the penalties and forfeitures imposed or declared by it, leaving any party who may think himself aggrieved thereby the right to make application to the Secretary of the Treasury for the remission of any penalty or forfeiture, which the said Secretary is authorized by law to grant, if, in his judgment, the special circ.u.mstances of any case shall require such remission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done in the City of Was.h.i.+ngton, this 16th day of August, in the year of our Lord 1861, and of the independence of the United States the eighty-sixth.

ABRAHAM LINCOLN.

WM. H. SEWARD, _Secretary of State_.