old one had ceased to exist, because a large portion of the Representatives had not then been elected. These reasons, however, produced no effect. The President's special message* was referred, two days after its date (10th January), by the House of Representatives to a special committee, of which Mr. Howard, of Michigan, was chairman. Nothing was heard from this committee for the space of twenty days. They then, on the 30th January, through Mr. John H. Reynolds, of New York, one of its members, reported a bill † enabling the President to call forth the militia or to accept the services of volunteers for the purpose of protecting the forts, magazines, arsenals, and other property of the United States; and to "recover possession" of such of these as "has been or may hereafter be unlawfully seized or taken possession of by any combination of persons whatever." Had this bill become a law, it would have been the duty of the President at once to raise a volunteer or militia force to recapture the forts which had been already seized. But Congress was not then prepared to assume such a responsibility. Mr. Reynolds accordingly withdrew his bill from the consideration of the House on the very day it was reported. On his own motion it was recommitted, and thus killed as soon as it saw the light. It was never heard of more. Then, after another pause of nineteen days, and only a fortnight before the close of the session, the Committee on Military Affairs, through Mr. Stanton, of Ohio, their chairman, on the 18th February reported another bill § on the subject, but of a more limited character than that which had been withdrawn. It is remarkable that it contains no provision touching the recovery of the forts and other property which had been already seized by the delinquent States. It did no more than provide that the powers already possessed by the President, under the Act of 1795, to employ the militia in suppressing insurrections against a State Government, should be "extended to the case of insurrections against the authority of the United States," with the additional authority to "accept the services of such volunteers *Con. Globe, p. 316. + Ibid., p. 645, bills of H. R., No. 698. as may offer their services for the purpose mentioned." Thus all hostile action for the recovery of the forts already seized was excluded from the bill. It is difficult to conceive what reasonable objection could be made to this bill, except that it did not go far enough and embrace the forts already seized; and more especially as when it was reported we may recollect that the Confederate Congress had already been ten days in session at Montgomery, Alabama, and had adopted a Provisional Constitution. Notwithstanding all this, the House refused to act upon it. The bill was discussed on several occasions until Tuesday, 26th February. On that day a motion was made by Mr. Corwin, of Ohio, to postpone its consideration until Thursday, the 28th February.* Mr. Stanton, the reporter of the bill, resisted this motion, stating that such a postponement would be fatal to it. "It will," said he, "be impossible after that to have it passed by the Senate" (before the 4th March). He, therefore, demanded the ayes and noes; and notwithstanding his warning, Mr. Corwin's motion prevailed by a vote of 100 to 74, and thus the bill was defeated. It may be proper to observe that Mr. Corwin, whose motion killed the bill, was a confidential friend of the President elect, then present in Washington, and was soon thereafter appointed minister to Mexico. But even had Congress passed this bill, it would have proved wholly inefficient for want of an appropriation to carry it into effect. The Treasury was empty; but had it been full, the President could not have drawn from it any, even the most trifling sum, without a previous appropriation by law. The union of the purse with the sword, in the hands of the Executive, is wholly inconsistent with the idea of a free government. The power of the legislative branch to withhold money from the Executive, and thus restrain him from dangerous projects of his own, is a necessary safeguard of liberty. This exists in every government pretending to be free. Hence our Constitution has declared that "no money shall be drawn from the Treasury but in consequence of appropriations made by law." It is, therefore, apparent that even if this bill had become a * Con. Globe, 1232. law, it could not have been carried into effect by the President without a direct violation of the Constitution. Notwithstanding these insuperable obstacles, no member of either House, throughout the entire session, ever even proposed to raise or appropriate a single dollar for the defence of the Government against armed rebellion. Congress not only refused to grant the President the authority and force necessary to suppress insurrections against the United States; but the Senate, by refusing to confirm his nomination of a collector of the customs for the port of Charleston, effectually tied his hands and rendered it impossible for him to collect the revenue within that port. In his annual message he had expressed the opinion that "the same insuperable obstacles do not lie in the way of executing the [existing] laws for the collection of customs on the seaboard of South Carolina as had been interposed to prevent the administration of justice under the Federal authority within the interior of that State." At all events he had determined to make the effort with the naval force under his command. He trusted that this might be accomplished without collision; but if resisted, then the force necessary to attain the object must be applied. Accordingly, whilst informing Congress "that the revenue still continues to be collected as heretofore at the custom house in Charleston," he says that "should the collector unfortunately resign, a successor may be appointed to perform this duty." The collector (William F. Colcock) continued faithfully to perform his duties until some days after the State had seceded, when at the end of December he resigned. The President, immediately afterwards, on the 2d January, nominated to the Senate, as his successor, Mr. Peter McIntire, of Pennsylvania, a gentleman well qualified for the office. The selection could not have been made from South Carolina, because no citizen of that State would have accepted the appointment. The Senate, throughout their entire session, never acted upon the nomination of Mr. McIntire; and without a collector of customs duly appointed, it was rendered impossible for the President, under any law in existence, to collect the revenue. But even if the Senate had confirmed Mr. McIntire's nomination, it is extremely doubtful whether the President could lawfully have collected the revenue against the forcible resistance of the State, unless Congress had conferred additional powers upon him. For this purpose Mr. Bingham, of Ohio, on the 3d January, 1861,* the day after Mr. McIntire's nomination to the Senate, reported a bill from the Judiciary Committee, further to provide for the collection of duties on imports. This bill embraced substantially the same provisions, long since expired, contained in the Act of 2d March, 1833, commonly called "the Force Bill," to enable General Jackson to collect the revenue outside of Charleston, "either upon land or on board any vessel." Mr. Bingham's bill was permitted to slumber on the files of the House until the 2d March, the last day but one before Congress expired,† when he moved for a suspension of the rules, to enable the House to take it up and consider it, but his motion proved unsuccessful. Indeed, the motion was not made until so late an hour of the session that even if it had prevailed, the bill could not have passed both Houses before the final adjournment. Thus the President was left both without a collector of customs, and most probably without any law which a collector could have carried into effect, had such an officer existed. Mr. Bingham's bill shared the fate of all other legislative measures, of whatever character, intended either to prevent or to confront the existing danger. From the persistent refusal to pass any act enabling either the outgoing or the incoming administration to meet the contingency of civil war, it may fairly be inferred that the friends of Mr. Lincoln, in and * out of Congress, believed he would be able to settle the existing difficulties with the cotton States in a peaceful manner, and that he might be embarrassed by any legislation contemplating the necessity of a resort to hostile measures. The 36th Congress expired on the 3d March, 1861, leaving the law just as they had found it. They made no provision whatever for the suppression of threatened rebellion, but deliberately refused to grant either men or money for this purpose. It was this violation of duty which compelled President Lincoln to issue a proclamation convening the new Congress, in special session, immediately after the attack on Fort Sumter. * Con. Globe, p. 236, bills H. R., No. 910. + H. Journal, p. 465 Urgent and dangerous emergencies may have arisen, or may hereafter arise in the history of our country, rendering delay disastrous, such as the bombardment of Fort Sumter by the Confederate Government, which would for the moment justify the President in violating the Constitution, by raising a military force without the authority of law, but this only during a recess of Congress. Such extreme cases are a law unto themselves. They must rest upon the principle that it is a lesser evil to usurp, until Congress can be assembled, a power withheld from the Executive, than to suffer the Union to be endangered, either by traitors at home or enemies from abroad. In all such cases, however, it is the President's duty to present to Congress, immediately after their next meeting, the causes which impelled him thus to act, and ask for their approbation; just as, on a like occasion, a British minister would ask Parliament for a bill of indemnity. It would be difficult, however, to conceive of an emergency so extreme as to justify or even excuse a President for thus transcending his constitutional powers whilst Congress, to whom he could make an immediate appeal, was in session. Certainly no such case existed during the administration of the late President. On the contrary, not only was Congress actually in session, but bills were long pending before it for extending his authority in calling forth the militia, for enabling him to accept the services of volunteers, and for the employment of the navy, if necessary, outside of ports of entry for the collection of the revenue, all of which were eventually rejected. Under these circumstances, had the President attempted, of his own mere will, to exercise these high powers, whilst Congress were at the very time deliberating whether to grant them to him or not, he would have made himself justly liable to impeachment. This would have been for the Executive to set at defiance both the Constitution and the legislative branch of the Government. |