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if all disobey, all may be forced, not in the aggregate, but each to the discharge of his own individual obligation. They are not guarantors for each other, nor is the State a guarantor for the good conduct in this regard of all or any portion of its citizens.
It seems clear, then, that, under the power to provide means "to execute the laws of the Union/' Congress cannot assume the right to wage hostilities against a State, or against all the people of a State in the aggregate.
Can it do so under the power "to suppress insurrection?"
Nothing would seem to be clearer, nor would any proposition receive more universal assent than that a State in its corporate or aggregate political capacity cannot be guilty of insurrection any more than it can be guilty of treason, felony, or riot, All or a portion of its citizens may be. Some of its citizens, in conjunction with some of the citizens of another State, may be in insurrection. In either such case the government may suppress it, not by assailing the State or States and all their citizens, for neither State lines nor State citizenship could be noticed, but by seizing and punishing the insurgents according to the law and the Constitution, If the object is to suppress the insurrection by dispersing the insurgents, it must be done by an attack on them, and not by a blind and ruthless assault upon all the people of the State or neighborhood, for no principle of law or of justice will permit the innocent and the guilty to be confounded.
The latter remedy cannot be used even against individuals except whilst they are in flagrante delicto, and for the purpose of dispersing. Punishments can only be inflicted after civil process issued, and after due prosecution according to law. To adopt the summary process against a State on pretence that it is in insurrection against a law which has been repealed, would be absurd, and might be treated as a nullity if it did not involve civil war in its train.
In as far, then, as the bill is an attempt to coerce a State or States, to punish whole communities for the delinquencies of individuals, as a means of compelling States to relinquish their purposes of secession from the Union, it is believed to be violative of the Constitution.
The Constitution gives to Congress power to regulate commerce, but it may be questioned whether that carries with it a right to de*-, stroy commerce, or to prohibit it in a portion of the States. It is not doubted that Congress has a right to establish and to abolish ports of entry, and so long as this right is exercised in good faith, its legitimacy cannot be successfully questioned. But when it is used confessedly not to regulate, but to destroy, so that there shall be none to regulate, it is a violation of the spirit and intent and of the very letter of the Constitution, as much so as it would be for Congress to enact under its power " to coin money and regulate the value thereof/' that in certain States or in certain towns, on their being proclaimed rebellious by the President, the use of money should be forbidden to all the inhabitants.
Again: Art. 1, sec. 9, of the Constitution, says: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.'' It would seem to an unsophisticated mind that to abolish all the ports of entry in a State, and to subject its citizens to heavy penalties for attempting to engage in commerce, are certainly acts that give a preference to ports of other States over those of the proscribed State. But it is said this bill is general and applicable alike to all the States; and that even if it was applicable to only one State it would not violate the Constitution, because ifc does not require all the ports to be closed in that State. To this it may be replied, that the bill is adroitly framed so as to appear to be general, but in reality it is not so. It does not operate at all except on a proclamation by the President, and it rests entirely with him to say where it shall operate, as well as when and how long. Under its provisions he may close up and blockade all the ports in one State without closing any others. So that, under the very best construction that can be placed on it, it is an attempt to authorize him to do what the Constitution says shall not be done.
Still more clearly is the other clause of the same section violated— "nor shall vessels bound to and from one State be obliged to enter, clear, and pay duties in another." For after all the ports of entry in Georgia have been closed, if a vessel shall sail from the West Indies with a cargo of molasses bound to Savannah, she cannot go into Savannah river without having first entered and paid duties, and thence cleared coastwise in some State whose ports have not been closed. If she refuses to do that which the Constitution s^ys shall not be required of any vessel, the captain and his vessel will be seized and carried off perhaps to Maine, where he will be fined a thousand dollars, and his vessel and cargo will be confiscated.
Again: article 3, section 2, of the Constitution says: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed." And the sixth amendment to the Constitution says: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed."*
Under the provisions of the bill, a vessel seized within the district of Georgia, that is, within three miles of its coast, may be carried, with its captain and cargo, into any other State for trial and condemnation. It is said the offence is not technically ua crime," and the proceeding is not u a criminal prosecution/' Unacquainted with the technicalities of the law, the undersigned is not prepared to controvers this assertion; but he respectfully submits that, if the captain has not been guilty of such a crime as entitles him to the safeguard guaranteed by the Constitution to petty offenders, he ought not to be subjected to so severe a penalty as a fine of a thousand dollars and forfeiture of his vessel and cargo, however valuable. The punishment is disproportioned to the offence. If he has been guilty of a crime, he is protected by the Constitution against being tried out of the district; if he has not been guilty of a crime, the pains and penalties of the bill are excessive.
*This is believed,to be the only instance of a repetition in the Constitution—a proof at once of the accuracy of the framers, and of their devotion to the great safeguard of trial by jury of the vicinage.
So inconsistent with the nature of our confederacy is the effort to substitute force for affection as the bond of Union, that every attempt to frame measures of coercion must equally with this encounter grave and manifold constitutional difficulties.
The undersigned is aware that, in recommending this bill in preference to one providing for the immediate use of military force within the harbors of the seceding States, the committee were mainly actuated by a desire to postpone as long as possible an actual collision of military forces. But war will be the inevitable consequence of the passage of this bill; and it is suitable that the House, in deliberating on it, should take into its consideration the probable consequences of war between the federal government and a large portion of the States. No human eye can take in all tke scenes of that bloody drama, which will lay waste this fairest home of freedom, and blot out all traces of the contentment, happiness, and prosperity which have been developed in an unparalleled degree under the mild and peaceful rule of a government of affection. But some of its immediate and least doubtful political consequences may properly be adverted to.
In the first place, what object will this government have in view in entering upon and prosecuting the war? At what point will it be willing to sheathe the sword, arrest hostilities on land and sea, and repeal hostile legislation? Would it be when the seceding States consent to assume the payment of all dues to the federal government which their citizens would become liable to pay under existing laws? If so, Congress had better tender that to them in advance as the alternative of the sword. When, in 1813, and again in 1815, Congress was driven by the necessities of war to levy an odious and unpopular tax, which, as former experience taught them, would lead to popular tumult, if not insurrection, authority was given for the States respectfully to assume the portion which would be payable by their citizens. If securing the revenue is the sole object of this war, and its prosecution is to cease when that object is attained, why not make the offer before the war commences?
Will you prosecute it until you can get persons to accept the offices of judge, marshal, district attorney, collector of customs, &c.? He who is brave enough to accept federal office in the seceding States, is too brave to bow under the federal lash. It will be easier to fill these offices by persuasion before, than by compulsion after, the war begins. Will you not cease hostilities until the seceding States consent to send senators and representatives to Congress? It will be easier to induce them to that course by conciliation—by removing grievances and all grounds of apprehension for their safety in the Union—than by waging war.
Dissolution would inevitably follow war. What, then, is to be gained by war, except to enable one portion of the people of the Union to gratify a feeling of hatred and revenge towards another portion.
The cries that the "Union must be preserved at all hazards," and that "the honor of the flag must be maintained/' do not even gloss over the real actuating motive of those who clamor for war, though many honorable and patriotic individuals are undoubtedly blinded into the belief that such are their objects, and that their means are conducive to their ends.
The Union cannot be preserved by civil war, nor can the honor of the flag be added to or maintained on the bloody fields of fraternal slaughter.
One more of the probable consequences ought not to be overlooked.
At present six States have withdrawn from the Union, and the expectation is entertained that only two more will at present pursue the same course. There are seven other States having the same interest in the institution of slavery, that are only restrained from severing their connexion with the Union from a lingering hope that the nonslaveholding States will take effectual steps to reader them secure, and to induce the return of those which h%ve seceded. They are now discharging faithfully, but in sadness, all the cjuties imposed on them by the federal Constitution. Whilst they remain in the Union they will fight its battles against all mankind, and scrupulously obey all its laws. But the undersigned feels justified in saying that not one of those States will furnish men or money, nor in any other manner aid, directly or indirectly, in waging war upon their brothers with whom they sympathize even in their errors. Whenever the laws of the Union impose that obligation, they will withdraw from the Union, and throw off the obligation of its laws. Not an arm will they raise, nor a blow strike, to impose the yoke or inflict vengeance on those who have been harassed and persecuted for thirty years by a merciless and intermeddling fanaticism until at length they have been driven into revolution.
The objects for which the Union was formed, as they are set forth in the preamble to the Constitution, were—
1. To form a more perfect union than had previously existed.
2. To establish justice.
3. To insure domestic tranquillity.
4. To provide for the common defence.
5. To promote the general welfare.
6. To secure the blessings of liberty to ourselves and our posterity. Civil war cannot conduce to one of those ends, nor can it coexist
with even a semblance of regard to those great objects. When Congress so far forgets the great and beneficent objects for which it was created as to endeavor to hurl one-half of the Union against the other half in bloody conflict, its commands will not be obeyed; the obligations of the Union will be promptly and sternly thrown off. The responsibility will surely rest on those who command so unnatural an act; but Delaware, Maryland, Virginia, North Carolina, Tennessee, Kentucky, and Missouri, with seven millions of population, will take upon themselves all the responsibility incident to the occasion. In the name of Christianity and civilization they will protest against it, and, if necessary, with arms in their hands, and with such assistance as they can obtain from other States, will forbid the foul and infamous deed.
It may be asked, Are the laws of the Union to be set at naught, and its authoi^ty denied? When only private individuals assume to disregard them, they can and ought to be enforced. The government has always been strong enough in physical forces and in the affections of its citizens to execute them when only opposed by individuals. Wide-spread discontent and formidable combinations have been overcome without the shedding of blood by an armed soldiery.
Similar difficulties could now be overcome in a similar manner. It is a striking fact that up to the moment of secession the laws of the United States have been scrupulously and punctually obeyed in every seceding State. No tendency to relapse into anarchy, or disposition to escape from the restraints of law, has been anywhere exhibited.
But when the resistance proceeds from States—not a single State, but an entire class of States—and the resistance is not to a law, but to the whole authority of government, the difficulty not only becomes greater in magnitude, but the nature of the case is altogether changed. It ceases to be a criminal misdemeanor, and becomes a political revolution.
Constables with writs can deal with the one, whilst only soldiers with the implements of war can overcome the other. Our government is amply provided for dealing with individual malefactors, but as the Constitution does not recognize the right of a State to secede, so it has made no provision for putting down revolution by force. If on the one side there is no right to do, there is on the other equally no right to prevent.
It ought not to be forgotten that the existing government was formed by the voluntary secession of the States from the old, and their voluntary accession to the new, confederacy. North Carolina and Ehode Island preferred the old to the new, and opposed the secession of the other members. The 13th article of confederation had expressly declared that "the union shall be perpetual/' and the framers had affixed their signatures to this declaration: "And we do further solemnly plight and engage the faith of our respective constituents * * that the articles thereof shall be inviolably observed by the States we respectively represent, and that the union shall be perpetual/' But the States had learned from experience that a change was necessary to their prosperity and happiness, and they made the change. State after State seceded, and the new government was put into operation, leaving North Carolina and Ehode Island alone clinging to the confederation. It never occurred to those States that they had a right to raise armies in the name of the confederacy, and make war under its flag against the seceding States. Least of all was it suspected that George Washington, president, and James Madison, Benjamin Franklin, Alexander Hamilton, Kufus King, and their compatriots, members of the convention which framed the present Constitution, were guilty of treason, although the articles of confederation, as has been seen, expressly negatived any right of secession.
The undersigned would rejoice to see the seceding States return of their own accord into the bosom of the confederacy. He does not doubt that they would joyfully do so if they could be assured of peace and security under its wing. He therefore respectfully submits that the remaining few days of the session can be better devoted to perfecting plans of adjustment and pacification than to organizing civil