James Buchanan: The Impending Disruption of the Union

▪ Primary Source

      During the critical four months that intervened between Abraham Lincoln's election in November 1860 and his inauguration in March 1861, President James Buchanan, a Democrat, was faced with the problem of secession. The Southerners in his cabinet were creating confusion and dissension. The secretary of war, a Virginia slaveholder, ordered arms and ammunition transferred from Northern arsenals to the South. In his last annual message to Congress on December 3, 1860, the president did not take a strong stand in asserting federal authority because Jeremiah S. Black, the attorney general, advised him that a state could not be legally coerced by the federal government. Two weeks after the message was delivered, South Carolina seceded from the Union.

      Fellow Citizens of the Senate and House of Representatives:

      Throughout the year since our last meeting the country has been eminently prosperous in all its material interests. The general health has been excellent, our harvests have been abundant, and plenty smiles throughout the land. Our commerce and manufactures have been prosecuted with energy and industry, and have yielded fair and ample returns. In short, no nation in the tide of time has ever presented a spectacle of greater material prosperity than we have done until within a very recent period.

      Why is it, then, that discontent now so extensively prevails, and the union of the states, which is the source of all these blessings, is threatened with destruction?

      The long continued and intemperate interference of the Northern people with the question of slavery in the Southern states has at length produced its natural effects. The different sections of the Union are now arrayed against each other, and the time has arrived, so much dreaded by the father of his country, when hostile geographical parties have been formed.

      I have long foreseen and often forewarned my countrymen of the now impending danger. This does not proceed solely from the claim on the part of Congress or the territorial legislatures to exclude slavery from the territories, nor from the efforts of different states to defeat the execution of the Fugitive Slave Law. All or any of these evils might have been endured by the South without danger to the Union (as others have been) in the hope that time and reflection might apply the remedy. The immediate peril arises not so much from these causes as from the fact that the incessant and violent agitation of the slavery question throughout the North for the last quarter of a century has at length produced its malign influence on the slaves and inspired them with vague notions of freedom.

      Hence a sense of security no longer exists around the family altar. This feeling of peace at home has given place to apprehensions of servile insurrections. Many a matron throughout the South retires at night in dread of what may befall herself and children before the morning. Should this apprehension of domestic danger, whether real or imaginary, extend and intensify itself until it shall pervade the masses of the Southern people, then disunion will become inevitable.

      Self-preservation is the first law of nature and has been implanted in the heart of man by his Creator for the wisest purpose; and no political union, however fraught with blessings and benefits in all other respects, can long continue if the necessary consequence be to render the homes and firesides of nearly half the parties to it habitually and hopelessly insecure. Sooner or later the bonds of such a union must be severed. It is my conviction that this fatal period has not yet arrived, and my prayer to God is that He would preserve the Constitution and the Union throughout all generations.

      But let us take warning in time and remove the cause of danger. It cannot be denied that for five-and-twenty years the agitation at the North against slavery has been incessant. In 1835 pictorial handbills and inflammatory appeals were circulated extensively throughout the South of a character to excite the passions of the slaves, and, in the language of General Jackson, “to stimulate them to insurrection and produce all the horrors of a servile war.” This agitation has ever since been continued by the public press, by the proceedings of state and county conventions, and by Abolition sermons and lectures. The time of Congress has been occupied in violent speeches on this never-ending subject, and appeals, in pamphlet and other forms, endorsed by distinguished names, have been sent forth from this central point and spread broadcast over the Union.

      How easy would it be for the American people to settle the slavery question forever and to restore peace and harmony to this distracted country! They, and they alone, can do it. All that is necessary to accomplish the object, and all for which the slave states have ever contended, is to be let alone and permitted to manage their domestic institutions in their own way. As sovereign states they, and they alone, are responsible before God and the world for the slavery existing among them. For this the people of the North are not more responsible and have no more right to interfere than with similar institutions in Russia or in Brazil.

      Upon their good sense and patriotic forbearance I confess I still greatly rely. Without their aid it is beyond the power of any President, no matter what may be his own political proclivities, to restore peace and harmony among the states. Wisely limited and restrained as is his power under our Constitution and laws, he alone can accomplish but little for good or for evil on such a momentous question.

      And this brings me to observe that the election of any one of our fellow citizens to the office of President does not of itself afford just cause for dissolving the Union. This is more especially true if his election has been effected by a mere plurality and not a majority of the people, and has resulted from transient and temporary causes, which may probably never again occur. In order to justify a resort to revolutionary resistance, the federal government must be guilty of “a deliberate, palpable, and dangerous exercise” of powers not granted by the Constitution. The late presidential election, however, has been held in strict conformity with its express provisions.

      How, then, can the result justify a revolution to destroy this very Constitution? Reason, justice, a regard for the Constitution, all require that we shall wait for some overt and dangerous act on the part of the President-elect before resorting to such a remedy. It is said, however, that the antecedents of the President-elect have been sufficient to justify the fears of the South that he will attempt to invade their constitutional rights. But are such apprehensions of contingent danger in the future sufficient to justify the immediate destruction of the noblest system of government ever devised by mortals? From the very nature of his office and its high responsibilities, he must necessarily be conservative. The stern duty of administering the vast and complicated concerns of this government affords in itself a guarantee that he will not attempt any violation of a clear constitutional right.

      After all, he is no more than the chief executive officer of the government. His province is not to make but to execute the laws. And it is a remarkable fact in our history that, notwithstanding the repeated efforts of the antislavery party, no single act has ever passed Congress, unless we may possibly except the Missouri Compromise, impairing in the slightest degree the rights of the South to their property in slaves; and it may also be observed, judging from present indications, that no probability exists of the passage of such an act by a majority of both houses, either in the present or the next Congress. Surely under these circumstances we ought to be restrained from present action by the precept of Him who spoke as man never spoke, that “sufficient unto the day is the evil thereof.” The day of evil may never come unless we shall rashly bring it upon ourselves.It is alleged as one cause for immediate secession that the Southern states are denied equal rights with the other states in the common territories. But by what authority are these denied? Not by Congress, which has never passed, and I believe never will pass, any act to exclude slavery from these territories; and certainly not by the Supreme Court, which has solemnly decided that slaves are property, and, like all other property, their owners have a right to take them into the common territories and hold them under the protection of the Constitution.

      So far, then, as Congress is concerned, the objection is not to anything they have already done but to what they may do hereafter. It will surely be admitted that this apprehension of future danger is no good reason for an immediate dissolution of the Union. It is true that the territorial legislature of Kansas, on the 23rd of February, 1860, passed in great haste an act over the veto of the governor declaring that slavery “is and shall be forever prohibited in this territory.” Such an act, however, plainly violating the rights of property secured by the Constitution, will surely be declared void by the judiciary whenever it shall be presented in a legal form.

      Only three days after my inauguration, the Supreme Court of the United States solemnly adjudged that this power did not exist in a territorial legislature. Yet such has been the factious temper of the times that the correctness of this decision has been extensively impugned before the people, and the question has given rise to angry political conflicts throughout the country. Those who have appealed from this judgment of our highest constitutional tribunal to popular assemblies would, if they could, invest a territorial legislature with power to annul the sacred rights of property. This power Congress is expressly forbidden by the federal Constitution to exercise. Every state legislature in the Union is forbidden by its own constitution to exercise it. It cannot be exercised in any state except by the people in their highest sovereign capacity, when framing or amending their state constitution.

      In like manner, it can only be exercised by the people of a territory represented in a convention of delegates for the purpose of framing a constitution preparatory to admission as a state into the Union. Then, and not until then, are they invested with power to decide the question whether slavery shall or shall not exist within their limits. This is an act of sovereign authority and not of subordinate territorial legislation. Were it otherwise, then, indeed, would the equality of the states in the territories be destroyed, and the rights of property in slaves would depend, not upon the guarantees of the Constitution but upon the shifting majorities of an irresponsible territorial legislature. Such a doctrine, from its intrinsic unsoundness, cannot long influence any considerable portion of our people, much less can it afford a good reason for a dissolution of the Union.

      The most palpable violations of constitutional duty which have yet been committed consist in the acts of different state legislatures to defeat the execution of the Fugitive Slave Law. It ought to be remembered, however, that for these acts neither Congress nor any President can justly be held responsible. Having been passed in violation of the federal Constitution, they are therefore null and void. All the courts, both state and national, before whom the question has arisen, have from the beginning declared the Fugitive Slave Law to be constitutional. The single exception is that of a state court in Wisconsin; and this has not only been reversed by the proper appellate tribunal but has met with such universal reprobation that there can be no danger from it as a precedent.

      The validity of this law has been established over and over again by the Supreme Court of the United States with perfect unanimity. It is founded upon an express provision of the Constitution requiring that fugitive slaves who escape from service in one state to another shall be “delivered up” to their masters. Without this provision it is a well-known historical fact that the Constitution itself could never have been adopted by the Convention. In one form or other, under the acts of 1793 and 1850, both being substantially the same, the Fugitive Slave Law has been the law of the land from the days of Washington until the present moment. Here, then, a clear case is presented in which it will be the duty of the next President, as it has been my own, to act with vigor in executing this supreme law against the conflicting enactments of state legislatures. Should he fail in the performance of this high duty, he will then have manifested a disregard of the Constitution and laws, to the great injury of the people of nearly one-half of the states of the Union.

      But are we to presume in advance that he will thus violate his duty? This would be at war with every principle of justice and of Christian charity. Let us wait for the overt act. 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 unconstitutional 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 Constitution, have a right to demand this act of justice from the states of the North. Should it be refused, then the Constitution, to which all the states are parties, will have been willfully violated by 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 peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the government of the Union.

      I have purposely confined my remarks to revolutionary resistance, because it has been claimed within the last few years that any state, whenever this shall be its sovereign will and pleasure, may secede from the Union in accordance with the Constitution and without any violation of the constitutional rights of the other members of the confederacy; that as each became parties to the Union by the vote of its own people assembled in convention, so any one of them may retire from the Union in a similar manner by the vote of such a convention.

      In order to justify secession as a constitutional remedy, it must be on the principle that the federal government is a mere voluntary association of states, to be dissolved at pleasure by any one of the contracting parties. If this be so, the confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the states. In this manner our thirty-three states may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.

      Such a principle is wholly inconsistent with the history as well as the character of the federal Constitution. After it was framed with the greatest deliberation and care, it was submitted to conventions of the people of the several states for ratification. Its provisions were discussed at length in these bodies, composed of the first men of the country. Its opponents contended that it conferred powers upon the federal government dangerous to the rights of the states, while its advocates maintained that under a fair construction of the instrument there was no foundation for such apprehensions.

      In that mighty struggle between the first intellects of this or any other country, it never occurred to any individual, either among its opponents or advocates, to assert or even to intimate that their efforts were all vain labor, because the moment that any state felt herself aggrieved she might secede from the Union. What a crushing argument would this have proved against those who dreaded that the rights of the states would be endangered by the Constitution! The truth is that it was not until many years after the origin of the federal government that such a proposition was first advanced. It was then met and refuted by the conclusive arguments of General Jackson, who in his message of the 16th of January, 1833, transmitting the nullifying ordinance of South Carolina to Congress, employs the following language:

The right of the people of a single state to absolve themselves at will and without the consent of the other states from their most solemn obligations, and hazard the liberties and happiness of the millions composing this Union, cannot be acknowledged. Such authority is believed to be utterly repugnant both to the principles upon which the general government is constituted and to the objects which it is expressly formed to attain.

      It is not pretended that any clause in the Constitution gives countenance to such a theory. It is altogether founded upon inference, not from any language contained in the instrument itself but from the sovereign character of the several states by which it was ratified. But is it beyond the power of a state, like an individual, to yield a portion of its sovereign rights to secure the remainder? In the language of Mr. Madison, who has been called the Father of the Constitution:

It was formed by the states; that is, by the people in each of the states acting in their highest sovereign capacity, and formed, consequently, by the same authority which formed the state constitutions. . . . Nor is the government of the United States, created by the Constitution, less a government, in the strict sense of the term, within the sphere of its powers, than the governments created by the constitutions of the states are within their several spheres. It is, like them, organized into Legislative, Executive, and Judiciary departments. It operates, like them, directly on persons and things, and, like them, it has at command a physical force for executing the powers committed to it.

      It was intended to be perpetual and not to be annulled at the pleasure of any one of the contracting parties. The old Articles of Confederation were entitled “Articles of Confederation and Perpetual Union between the States,” and by the 13th Article it is expressly declared that “the articles of this Confederation shall be inviolably observed by every state, and the Union shall be perpetual.” The Preamble to the Constitution of the United States, having express reference to the Articles of Confederation, recites that it was established “in order to form a more perfect union.” And yet it is contended that this “more perfect union” does not include the essential attribute of perpetuity.

      But that the Union was designed to be perpetual appears conclusively from the nature and extent of the powers conferred by the Constitution on the federal government. These powers embrace the very highest attributes of national sovereignty. They place both the sword and the purse under its control. Congress has power to make war and to make peace, to raise and support armies and navies, and to conclude treaties with foreign governments. It is invested with the power to coin money and to regulate the value thereof, and to regulate commerce with foreign nations and among the several states. It is not necessary to enumerate the other high powers which have been conferred upon the federal government. In order to carry the enumerated powers into effect, Congress possesses the exclusive right to lay and collect duties on imports, and, in common with the states, to lay and collect all other taxes.

      But the Constitution has not only conferred these high powers upon Congress but it has adopted effectual means to restrain the states from interfering with their exercise. For that purpose it has in strong prohibitory language expressly declared that:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

      Moreover,

No state shall, without the consent of the Congress lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.

      And if they exceed this amount, the excess shall belong to the United States. And,

No state shall without the consent of Congress lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay.

      In order still further to secure the uninterrupted exercise of these high powers against state interposition, it is provided that:

This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

      The solemn sanction of religion has been superadded to the obligations of official duty, and all senators and representatives of the United States, all members of state legislatures, and all executive and judicial officers “both of the United States and of the several states, shall be bound by oath or affirmation to support this Constitution.”

      In order to carry into effect these powers, the Constitution has established a perfect government in all its forms—legislative, executive, and judicial; and this government to the extent of its powers acts directly upon the individual citizens of every state, and executes its own decrees by the agency of its own officers. In this respect it differs entirely from the government under the old Confederation, which was confined to making requisitions on the states in their sovereign character. This left it in the discretion of each whether to obey or to refuse, and they often declined to comply with such requisitions. It thus became necessary for the purpose of removing this barrier and “in order to form a more perfect union” to establish a government which could act directly upon the people and execute its own laws without the intermediate agency of the states. This has been accomplished by the Constitution of the United States. In short, the government created by the Constitution, and deriving its authority from the sovereign people of each of the several states, has precisely the same right to exercise its power over the people of all these states in the enumerated cases that each one of them possesses over subjects not delegated to the United States, but “reserved to the states respectively or to the people.”

      To the extent of the delegated powers the Constitution of the United States is as much a part of the constitution of each state and is as binding upon its people as though it had been textually inserted therein.

      This government, therefore, is a great and powerful government, invested with all the attributes of sovereignty over the special subjects to which its authority extends. Its framers never intended to implant in its bosom the seeds of its own destruction, nor were they, at its creation, guilty of the absurdity of providing for its own dissolution. It was not intended by its framers to be the baseless fabric of a vision, which at the touch of the enchanter would vanish into thin air, but a substantial and mighty fabric, capable of resisting the slow decay of time and of defying the storms of ages. Indeed, well may the jealous patriots of that day have indulged fears that a government of such high powers might violate the reserved rights of the states, and wisely did they adopt the rule of a strict construction of these powers to prevent the danger. But they did not fear, nor had they any reason to imagine, that the Constitution would ever be so interpreted as to enable any state by her own act, and without the consent of her sister states, to discharge her people from all or any of their federal obligations.

      It may be asked, then—Are the people of the states without redress against the tyranny and oppression of the federal government? By no means. The right of resistance on the part of the governed against the oppression of their governments cannot be denied. It exists independently of all constitutions, and has been exercised at all periods of the world's history. Under it, old governments have been destroyed and new ones have taken their place. It is embodied in strong and express language in our own Declaration of Independence. But the distinction must ever be observed that this is revolution against an established government and not a voluntary secession from it by virtue of an inherent constitutional right. In short, let us look the danger fairly in the face. Secession is neither more nor less than revolution. It may or it may not be a justifiable revolution, but still it is revolution.

      What, in the meantime, is the responsibility and true position of the executive? He is bound by solemn oath, before God and the country, “to take care that the laws be 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 on the statute book bearing upon this subject are those of Feb. 28, 1795, and March 3, 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 abodes within a limited time.” This duty cannot 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 constitute one solid 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 attitude. Congress alone has power to decide whether the present laws can or cannot be amended so as to carry out more effectually the objects of the Constitution.The same insuperable obstacles do not lie in the way of executing the laws for the collection of the customs. The revenue still continues to be collected as heretofore at the customhouse in Charleston, and should the collector unfortunately resign a successor may be appointed to perform this duty.

      Then, in regard to the property of the United States in South Carolina. This has been purchased for a fair equivalent, “by the consent of the legislature of the state,” “for the erection of forts, magazines, arsenals,” etc., and over these the authority “to exercise exclusive legislation” has been expressly granted by the Constitution to Congress. It is not believed that any attempt will be made to expel the United States from this property by force; but if in this I should prove to be mistaken, the officer in command of the forts has received orders to act strictly on the defensive. In such a contingency the responsibility for consequences would rightfully rest upon the heads of the assailants.

      Apart from the execution of the laws, so far as this may be practicable, the executive has no authority to decide what shall be the relations between the federal government and South Carolina. He has been invested with no such discretion. He possesses no power to change the relations heretofore existing between them, much less to acknowledge the independence of that state. This would be to invest a mere executive officer with the power of recognizing the dissolution of the confederacy among our thirty-three sovereign states. It bears no resemblance to the recognition of a foreign de facto government, involving no such responsibility. Any attempt to do this would, on his part, be a naked act of usurpation. It is therefore my duty to submit to Congress the whole question in all its bearings. 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 on this important subject.

      The question fairly stated is: Has the Constitution delegated to Congress the power to coerce a state into submission which is attempting to withdraw or has actually 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 Constitution 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 Constitution.

      It appears from the proceedings of that body that on the 31st of May, 1787, the clause “authorizing an 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 afterward, on the 8th of June, 1787, when incidentally adverting to the subject, he said: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional 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 asserted that the power to make war against a state is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a state; how are we to govern it afterward? Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect senators and representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free state as a constituent member of the confederacy.

      But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict, a vast amount of blood and treasure would be expended, rendering future reconciliation between the states impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence?

      The fact is that our Union rests upon public opinion and can never be cemented by the blood of its citizens shed in civil war. If it cannot live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.

      But may I be permitted solemnly to invoke my countrymen to pause and deliberate before they determine to destroy this, the grandest temple which has ever been dedicated to human freedom since the world began? It has been consecrated by the blood of our fathers, by the glories of the past, and by the hopes of the future. The Union has already made us the most prosperous, and ere long will, if preserved, render us the most powerful nation on the face of the earth. In every foreign region of the globe the title of American citizen is held in the highest respect, and when pronounced in a foreign land it causes the hearts of our countrymen to swell with honest pride. Surely, when we reach the brink of the yawning abyss, we shall recoil with horror from the last fatal plunge.

      By such a dread catastrophe the hopes of the friends of freedom throughout the world would be destroyed, and a long night of leaden despotism would enshroud the nations. Our example for more than eighty years would not only be lost but it would be quoted as a conclusive proof that man is unfit for self-government.

      It is not every wrong—nay, it is not every grievous wrong—which can justify a resort to such a fearful alternative. This ought to be the last desperate remedy of a despairing people, after every other constitutional means of conciliation had been exhausted. We should reflect that under this free government there is an incessant ebb and flow in public opinion. The slavery question, like everything human, will have its day. I firmly believe that it has reached and passed the culminating point. But if in the midst of the existing excitement the Union shall perish, the evil may then become irreparable.

      Congress can contribute much to avert it by proposing and recommending to the legislatures of the several states the remedy for existing evils which the Constitution has itself provided for its own preservation. This has been tried at different critical periods of our history, and always with eminent success. It is to be found in the 5th Article, providing for its own amendment. Under this article, amendments have been proposed by two-thirds of both houses of Congress, and have been “ratified by the legislatures of three-fourths of the several states,” and have consequently become parts of the Constitution. To this process the country is indebted for the clause prohibiting Congress from passing any law respecting an establishment of religion or abridging the freedom of speech or of the press or of the right of petition. To this we are also indebted for the Bill of Rights, which secures the people against any abuse of power by the federal government. Such were the apprehensions justly entertained by the friends of state rights at that period as to have rendered it extremely doubtful whether the Constitution could have long survived without those amendments.Again the Constitution was amended by the same process, after the election of President Jefferson by the House of Representatives, in February 1803. This amendment was rendered necessary to prevent a recurrence of the dangers which had seriously threatened the existence of the government during the pendency of that election. The article for its own amendment was intended to secure the amicable adjustment of conflicting constitutional questions, like the present, which might arise between the governments of the states and that of the United States. This appears from contemporaneous history.

      In this connection I shall merely call attention to a few sentences in Mr. Madison's justly celebrated report, in 1799, to the legislature of Virginia. In this he ably and conclusively defended the resolutions of the preceding legislature against the strictures of several other state legislatures. These were mainly founded upon the protest of the Virginia legislature against the “Alien and Sedition Acts,” as “palpable and alarming infractions of the Constitution.” In pointing out the peaceful and constitutional remedies—and he referred to none other—to which the states were authorized to resort on such occasions, he concludes by saying:

The legislatures of the states might have made a direct representation to Congress with a view to obtain a rescinding of the two offensive acts, or they might have represented to their respective senators in Congress their wish that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might by an application to Congress have obtained a convention for the same object.

      This is the very course which I earnestly recommend in order to obtain an “explanatory amendment” of the Constitution on the subject of slavery. This might originate with Congress or the state legislatures, as may be deemed most advisable to attain the object. The explanatory amendment might be confined to the final settlement of the true construction of the Constitution on three special points:

An express recognition of the right of property in slaves in the states where it now exists or may hereafter exist.The duty of protecting this right in all the common territories throughout their territorial existence, and until they shall be admitted as states into the Union, with or without slavery, as their constitutions may prescribe.A like recognition of the right of the master to have his slave who has escaped from one state to another restored and “delivered up” to him, and of the validity of the Fugitive Slave Law enacted for this purpose, together with a declaration that all state laws impairing or defeating this right are violations of the Constitution, and are consequently null and void. It may be objected that this construction of the Constitution has already been settled by the Supreme Court of the United States, and what more ought to be required? The answer is that a very large proportion of the people of the United States still contest the correctness of this decision, and never will cease from agitation and admit its binding force until clearly established by the people of the several states in their sovereign character. Such an explanatory amendment would, it is believed, forever terminate the existing dissensions and restore peace and harmony among the states.

      It ought not to be doubted that such an appeal to the arbitrament established by the Constitution itself would be received with favor by all the states of the confederacy. In any event, it ought to be tried in a spirit of conciliation before any of these states shall separate themselves from the Union.

Source: A Compilation of the Messages and Papers of the Presidents 1789-1897, James D. Richardson, ed., Washington, 1896-1899, Vol. V, pp. 626-653.

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