CHAPTER XV.

This was submitted to the Congress, in order that, if approved by them, it might be referred to the States for adoption or rejection by the several conventions thereof, and, if adopted by nine of the States, it was to be the compact of union between the States so ratifying the same.

The new form of government differed in many essential particulars from the old one. The delegates, intent on the purpose to give greater efficiency to the government of the Union, proposed greatly to enlarge its powers, so much so that it was not deemed safe to confide them to a single body, and they were consequently distributed between three independent departments of government, which might be a check upon one another. The Constitution did not, like the Articles of Confederation, declare that the States had agreed to a perpetual union, but distinctly indicated the hope of its perpetuity by the expression in the preamble of the purpose to "secure the blessings of liberty to ourselves and our posterity." The circumstances under which the Union of the Constitution was formed justified the hope of its perpetuity, but the brief existence of the Confederation may have been a warning against the renewal of the assertion that the compact should be perpetual.

A remedy for the embarrassment which had been realized, under the Articles of Confederation, in obtaining amendments to correct any defects in grants of power, so as to render them effective for the purpose for which they were given, was provided by its fifth article. It is here to be specially noted that new grants of power, as asked for by the Convention, were under the Articles of Confederation only to be obtained from the unanimous assent of the States. Therefore it followed that two of the States which did not ratify the Constitution were, so long as they retained that attitude, free from its obligations. Thus it is seen that the same principle in regard to obtaining grants of additional power for the Federal Government formed the rule for the Union as it had done for the Confederation; that is, that the consent of each and every State was a prerequisite. The apprehension which justly existed that several of the States might reject the Constitution, and under the rule of unanimity defeat it, led to the seventh article of the Constitution, which, provided that the ratification by the conventions of nine States should be sufficient for the establishment of the Constitution between the States ratifying it, which of course contemplated leaving the others, more or less in number, separate and distinct from the nine States forming a new government. Thus was the Union to be a voluntary compact, and all the powers of its government to be derived from the assent of each of its members.

These powers as proposed by the Constitution were so extensive as to create alarm and opposition by some of the most influential men in many of the States. It is known that the objection of the patriot Samuel Adams was only overcome by an assurance that such an amendment as the tenth would be adopted. Like opposition was by like assurance elsewhere overcome. That article is in these words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

Amendment, however, of the delegated powers was made more easy than it had been under the Confederation. Ratification by three fourths of the States was sufficient under the Constitution for the adoption of an amendment to it. As this power of amendment threatens to be the Aaron's rod which will swallow up the rest, I propose to give it special examination. What is the Constitution of the United States? The whole body of the instrument, the history of its formation and adoption, as well as the tenth amendment, added in an abundance of caution, clearly show it to be an instrument enumerating the powers delegated by the States to the Federal Government, their common agent. It is specifically declared that all which was not so delegated was reserved. On this mass of reserved powers, those which the States declined to grant, the Federal Government was expressly forbidden to intrude. Of what value would this prohibition have been, if three fourths of the States could, without the assent of a particular State, invade the domain which that State had reserved for its own exclusive use and control?

It has heretofore, I hope, been satisfactorily demonstrated that the States were sovereigns before they formed the Union, and that they have never surrendered their sovereignty, but have only intrusted by their common agent certain functions of sovereignty to be used for their common welfare.

Among the powers delegated was one to amend the Constitution, which, it is submitted, was merely the power to amend the delegated grants, and these were obtained by the separate and independent action of each State acceding to the Union. When we consider how carefully each clause was discussed in the General Convention, and how closely each was scrutinized in the conventions of the several States, the conclusion can not be avoided that all was specified which it was intended to bestow, and not a few of the wisest in that day held that too much power had been conferred.

Aware of the imperfection of everything devised by man, it was foreseen that, in the exercise of the functions intrusted to the General Government, experience might reveal the necessity of modification—i.e., amendment—and power was therefore given to amend, in a certain manner, the delegated trusts so as to make them efficient for the purposes designed, or to prevent their misconstruction or abuse to the injury or oppression of any of the people. In support of this view I refer to the historical fact that the first ten amendments of the Constitution, nearly coeval with it, all refer either to the powers delegated, or are directed to the greater security of the rights which were guarded by express limitations.

The distinction in the mind of the framers of the Constitution between amendment and delegation of power seems to me clearly drawn by the fact that the Constitution itself, which was a proposition to the States to grant enumerated powers, was only to have effect between the ratifying States; but the fifth article provided that amendments to the Constitution might be adopted by three fourths of the States, and thereby be valid as part of the Constitution. It thus appears that a smaller power was required for an amendment than for a grant, and the natural if not necessary conclusion is, that it was because an amendment must belong to, and grow out of, a grant previously made. If a so-called amendment could have been the means of obtaining a new power, is it to be supposed that those watchful guardians of community independence, for which the war of the Revolution had been fought, would have been reconciled to the adoption of the Constitution, by the declaration that the powers not delegated are reserved to the States? Unless the power of amendment be confined to the grants of the Constitution, there can be no security to the reserved rights of a minority less than a fourth of the States. I submit that the word "amendment" necessarily implies an improvement upon something which is possessed, and can have no proper application to that which did not previously exist.

The apprehension that was felt of this power of amendment by the framers of the Constitution is shown by the restrictions placed upon the exercise of several of the delegated powers. For example: power was given to admit new States, but no new State should be erected within the jurisdiction of any other State, nor be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of those States; and the power to regulate commerce was limited by the prohibition of an amendment affecting, for a certain time, the migration or importation of persons whom any of the existing States should think proper to admit; and by the very important provision for the protection of the smaller States and the preservation of their equality in the Union, that the compact in regard to the membership of the two Houses of Congress should not be so amended that any "State, without its consent, shall be deprived of its equal suffrage in the Senate." These limitations and prohibitions on the power of amendment all refer to clauses of the Constitution, to things which existed as part of the General Government; they were not needed, and therefore not to be found in relation to the reserved powers of the States, on which the General Government was forbidden to intrude by the ninth article of the amendments.

In view of the small territory of the New England States, comparatively to that of the Middle and Southern States, and the probability of the creation of new States in the large Territory of some of these latter, it might well have been anticipated that in the course of time the New England States would become less than one fourth of the members of the Union. Nothing is less likely than that the watchful patriots of that region would have consented to a form of government which should give to a majority of three fourths of the States the power to deprive them of their dearest rights and privileges. Yet to this extremity the new-born theory of the power of amendment would go. Against this insidious assault, this wooden horse which it is threatened to introduce into the citadel of our liberties, I have sought to warn the inheritors of our free institutions, and earnestly do invoke the resistance of all true patriots.

PART III.

CHAPTER I.

The truth is, that the Southern people were in advance of their representatives throughout, and that these latter were not agitators or leaders in the popular movement. They were in harmony with its great principles, but their influence, with very few exceptions, was exerted to restrain rather than to accelerate their application, and to allay rather than to stimulate excitement. As sentinels on the outer wall, the people had a right to look to them for warning of approaching danger; but, as we have seen, in that last session of the last Congress that preceded the disruption, Southern Senators, of the class generally considered extremists, served on a committee of pacification, and strove earnestly to promote its objects. Failing in this, they still exerted themselves to prevent the commission of any act that might result in bloodshed.

Invention has busied itself, to the exhaustion of its resources, in the creation of imaginary "cabals," "conspiracies," and "intrigues," among the Senators and Representatives of the South on duty in Washington at that time. The idle gossip of the public hotels, the sensational rumors of the streets, the canards of newspaper correspondents—whatever was floating through the atmosphere of that anxious period—however lightly regarded at the moment by the more intelligent, has since been drawn upon for materials to be used in the construction of what has been widely accepted as authentic history. Nothing would seem to be too absurd for such uses. Thus, it has been gravely stated that a caucus of Southern Senators, held in the early part of January, "resolved to assume to themselves the political power of the South"; that they took entire control of all political and military operations; that they issued instructions for the passage of ordinances of secession, and for the seizure of forts, arsenals, and custom-houses; with much more of the like groundless fiction. A foreign prince, who served for a time in the Federal Army, and has since undertaken to write a history of "The Civil War in America"—a history the incomparable blunders of which are redeemed from suspicion of willful misstatement only by the writer's ignorance of the subject—speaks of the Southern representatives as having "kept their seats in Congress in order to be able to paralyze its action, forming, at the same time, a center whence they issued directions to their friends in the South to complete the dismemberment of the republic."¹⁰⁸ And again, with reference to the secession of several States, he says that "the word of command issued by the committee at Washington was promptly obeyed."¹⁰⁹

Statements such as these are a travesty upon history. That the representatives of the South held conference with one another and took counsel together, as men having common interests and threatened by common dangers, is true, and is the full extent of the truth. That they communicated to friends at home information of what was passing is to be presumed, and would have been most obligatory if it had not been that the published proceedings rendered such communication needless. But that any such man, or committee of men, should have undertaken to direct the mighty movement then progressing throughout the South, or to control, through the telegraph and the mails, the will and the judgment of conventions of the people, assembled under the full consciousness of the dignity of that sovereignty which they represented, would have been an extraordinary degree of folly and presumption.

The absurdity of the statement is further evident from a consideration of the fact that the movements which culminated in the secession of the several States began before the meeting of Congress. They were not inaugurated, prosecuted, or controlled by the Senators and Representatives in Congress, but by the Governors, Legislatures, and finally by the delegates of the people in conventions of the respective States. I believe I may fairly claim to have possessed a full share of the confidence of the people of the State which I in part represented; and proof has already been furnished to show how little effect my own influence could have upon their action, even in the negative capacity of a brake upon the wheels, by means of which it was hurried on to consummation.

As for the imputation of holding our seats as a vantage-ground in plotting for the dismemberment of the Union—in connection with which the Count of Paris does me the honor to single out my name for special mention—it is a charge so dishonorable, if true, to its object—so disgraceful, if false, to its author—as to be outside of the proper limit of discussion. It is a charge which no accuser ever made in my presence, though I had in public debate more than once challenged its assertion and denounced its falsehood. It is enough to say that I always held, and repeatedly avowed, the principle that a Senator in Congress occupied the position of an ambassador from the State which he represented to the Government of the United States, as well as in some sense a member of the Government; and that, in either capacity, it would be dishonorable to use his powers and privileges for the destruction or for the detriment of the Government to which he was accredited. Acting on this principle, as long as I held a seat in the Senate, my best efforts were directed to the maintenance of the Constitution, the Union resulting from it, and to make the General Government an effective agent of the States for its prescribed purpose. As soon as the paramount allegiance due to Mississippi forbade a continuance of these efforts, I withdrew from the position. To say that during this period I did nothing secretly, in conflict with what was done or professed openly, would be merely to assert my own integrity, which would be worthless to those who may doubt it, and superfluous to those who believe in it. What has been said on the subject for myself, I believe to be also true of my Southern associates in Congress.

With regard to the forts, arsenals, etc., something more remains to be said. The authorities of the Southern States immediately after, and in some cases a few days before, their actual secession, took possession (in every instance without resistance or bloodshed) of forts, arsenals, custom-houses, and other public property within their respective limits. I do not propose at this time to consider the question of their right to do so; that may be more properly done hereafter. But it may not be out of place briefly to refer to the statement, often made, that the absence of troops from the military posts in the South, which enabled the States so quietly to take such possession, was the result of collusion and prearrangement between the Southern leaders and the Federal Secretary of War, John B. Floyd, of Virginia. It is a sufficient answer to this allegation to state the fact that the absence of troops from these posts, instead of being exceptional, was, and still is, their ordinary condition in time of peace. At the very moment when these sentences are being written (in 1880), although the army of the United States is twice as large as in 1860; although four years of internal war and a yet longer period of subsequent military occupation of the South have habituated the public to the presence of troops in their midst, to an extent that would formerly have been startling if not offensive; although allegations of continued disaffection on the part of the Southern people have been persistently reiterated, for party purposes—yet it is believed that the forts and arsenals in the States of the Gulf are in as defenseless a condition, and as liable to quiet seizure (if any such purpose existed), as in the beginning of the year 1861. Certainly, those within the range of my personal information are occupied, as they were at that time, only by ordnance-sergeants or fort-keepers.

There were, however, some exceptions to this general rule—especially in the defensive works of the harbor of Charleston, the forts at Key West and the Dry Tortugas, and those protecting the entrance of Pensacola Bay. The events which occurred in Charleston Harbor will be more conveniently noticed hereafter. The island forts near the extreme southern point of Florida were too isolated and too remote from population to be disturbed at that time; but the situation long maintained at the mouth of Pensacola Bay affords a signal illustration of the forbearance and conciliatory spirit that animated Southern counsels. For a long time, Fort Pickens, on the island of Santa Rosa, at the entrance to the harbor, was occupied only by a small body of Federal soldiers and marines—less than one hundred, all told. Immediately opposite, and in possession of the other two forts and the adjacent navy-yard, was a strong force of volunteer troops of Florida and Alabama (which might, on short notice, have been largely increased), ready and anxious to attack and take possession of Fort Pickens. That they could have done so is unquestionable, and, if mere considerations of military advantage had been consulted, it would surely have been done. But the love of peace and the purpose to preserve it, together with a revulsion from the thought of engaging in fraternal strife, were more potent than considerations of probable interest. During the anxious period of uncertainty and apprehension which ensued, the efforts of the Southern Senators in Washington were employed to dissuade (they could not command) from any aggressive movement, however justifiable, that might lead to collision. These efforts were exerted through written and telegraphic communications to the Governors of Alabama and Florida, the Commander of the Southern troops, and other influential persons near the scene of operations. The records of the telegraph-office, if preserved, will no doubt show this to be a very moderate statement of those efforts. It is believed that by such influence alone a collision was averted; and it is certain that its exercise gave great dissatisfaction at the time to some of the ardent advocates of more active measures. It may be that they were right, and that we, who counseled delay and forbearance, were wrong. Certainly, if we could have foreseen the ultimate failure of all efforts for a peaceful settlement, and the perfidy that was afterward to be practiced in connection with them, our advice would have been different.

Certain resolutions, said to have been adopted in a meeting of Senators held on the evening of the 5th of January,¹¹⁰ have been magnified, by the representations of artful commentators on the events of the period, into something vastly momentous.

The significance of these resolutions was the admission that we could not longer advise delay, and even that was unimportant under the circumstances, for three of the States concerned had taken final action on the subject before the resolutions could have been communicated to them. As an expression of opinion, they merely stated that of which we had all become convinced by the experience of the previous month—that our long-cherished hopes had proved illusory—that further efforts in Congress would be unavailing, and that nothing remained, except that the States should take the matter into their own hands, as final judges of their wrongs and of the measure of redress. They recommended the formation of a confederacy among the seceding States as early as possible after their secession—advice the expediency of which could hardly be questioned, either by friend or foe. As to the "instructions" asked for with regard to the propriety of continuing to hold their seats, I suppose it must have been caused by some diversity of opinion which then and long afterward continued to exist; and the practical value of which must have been confined to Senators of States which did not actually secede. For myself, I can only say that no advice could have prevailed on me to hold a seat in the Senate after receiving notice that Mississippi had withdrawn from the Union. The best evidence that my associates thought likewise is the fact that, although no instructions were given them, they promptly withdrew on the receipt of official information of the withdrawal of the States which they represented.

It will not be amiss here briefly to state what were my position and feelings at the period now under consideration, as they have been the subject of gross and widespread misrepresentation. It is not only untrue, but absurd, to attribute to me motives of personal ambition to be gratified by a dismemberment of the Union. Much of my life had been spent in the military and civil service of the United States. Whatever reputation I had acquired was identified with their history; and, if future preferment had been the object, it would have led me to cling to the Union as long as a shred of it should remain. If any, judging after the event, should assume that I was allured by the high office subsequently conferred upon me by the people of the Confederate States, the answer to any such conclusion has been made by others, to whom it was well known, before the Confederacy was formed, that I had no desire to be its President. When the suggestion was made to me, I expressed a decided objection, and gave reasons of a public and permanent character against being placed in that position.

Furthermore, I then held the office of United States Senator from Mississippi—one which I preferred to all others. The kindness of the people had three times conferred it upon me, and I had no reason to fear that it would not be given again, as often as desired. So far from wishing to change this position for any other, I had specially requested my friends (some of whom had thought of putting me in nomination for the Presidency of the United States in 1860) not to permit "my name to be used before the Convention for any nomination whatever."

I had been so near the office for four years, while in the Cabinet of Mr. Pierce, that I saw it from behind the scenes, and it was to me an office in no wise desirable. The responsibilities were great; the labor, the vexations, the disappointments, were greater. Those who have intimately known the official and personal life of our Presidents can not fail to remember how few have left the office as happy men as when they entered it, how darkly the shadows gathered around the setting sun, and how eagerly the multitude would turn to gaze upon another orb just rising to take its place in the political firmament.

Worn by incessant fatigue, broken in fortune, debarred by public opinion, prejudice, or tradition, from future employment, the wisest and best who have filled that office have retired to private life, to remember rather the failure of their hopes than the success of their efforts. He must, indeed, be a self-confident man who could hope to fill the chair of Washington with satisfaction to himself, with the assurance of receiving on his retirement the meed awarded by the people to that great man, that he had "lived enough for life and for glory," or even of feeling that the sacrifice of self had been compensated by the service rendered to his country.

The following facts were presented in a letter written several years ago by the Hon. C. C. Clay, of Alabama, who was one of my most intimate associates in the Senate, with reference to certain misstatements to which his attention had been called by one of my friends:

"The import is, that Mr. Davis, disappointed and chagrined at not receiving the nomination of the Democratic party for President of the United States in 1860, took the lead on the assembling of Congress in December, 1860, in a 'conspiracy' of Southern Senators 'which planned the secession of the Southern States from the Union,' and 'on the night of January 5, 1861,... framed the scheme of revolution which was implicitly and promptly followed at the South.' In other words, that Southern Senators (and, chief among them, Jefferson Davis), then and there, instigated and induced the Southern States to secede.

"I am quite sure that Mr. Davis neither expected nor desired the nomination for the Presidency of the United States in 1860. He never evinced any such aspiration, by word or sign, to me—with whom he was, I believe, as intimate and confidential as with any person outside of his own family. On the contrary, he requested the delegation from Mississippi not to permit the use of his name before the Convention. And, after the nomination of both Douglas and Breckinridge, he conferred with them, at the instance of leading Democrats, to persuade them to withdraw, that their friends might unite on some second choice—an office he would never have undertaken, had he sought the nomination or believed he was regarded as an aspirant.

"Mr. Davis did not take an active part in planning or hastening secession. I think he only regretfully consented to it, as a political necessity for the preservation of popular and State rights, which were seriously threatened by the triumph of a sectional party who were pledged to make war on them. I know that some leading men, and even Mississippians, thought him too moderate and backward, and found fault with him for not taking a leading part in secession.

"No 'plan of secession' or 'scheme of revolution' was, to my knowledge, discussed—certainly none matured—at the caucus, 5th of January, 1861, unless, forsooth, the resolutions appended hereto be so held. They comprise the sum and substance of what was said and done. I never heard that the caucus advised the South 'to accumulate munitions of war,' or 'to organize and equip an army of one hundred thousand men,' or determined 'to hold on as long as possible to the Southern seats.' So far from it, a majority of Southern Senators seemed to think there would be no war; that the dominant party in the North desired separation from the South, and would gladly let their 'erring sisters go in peace.' I could multiply proofs of such a disposition. As to holding on to their seats, no Southern Legislature advised it, no Southern Senator who favored secession did so but one, and none others wished to do so, I believe.

"The 'plan of secession,' if any, and the purpose of secession, unquestionably, originated, not in Washington City, or with the Senators or Representatives of the South, but among the people of the several States, many months before it was attempted. They followed no leaders at Washington or elsewhere, but acted for themselves, with an independence and unanimity unprecedented in any movement of such magnitude. Before the meeting of the caucus of January 5, 1861, South Carolina had seceded, and Alabama, Mississippi, Florida, Louisiana, and Texas had taken the initial step of secession, by calling conventions for its accomplishment. Before the election of Lincoln, all the Southern States, excepting one or two, had pledged themselves to separate from the Union upon the triumph of a sectional party in the Presidential election, by acts or resolutions of their Legislatures, resolves of both Democratic and Whig State Conventions, and of primary assemblies of the people—in every way in which they could commit themselves to any future act. Their purpose was proclaimed to the world through the press and telegraph, and criticised in Congress, in the Northern Legislatures, in press and pulpit, and on the hustings, during many months before Congress met in December, 1860.

"Over and above all these facts, the reports of the United States Senate show that, prior to the 5th of January, 1861, Southern Senators united with Northern Democratic Senators in an effort to effect pacification and prevent secession, and that Jefferson Davis was one of a committee appointed by the Senate to consider and report such a measure; that it failed because the Northern Republicans opposed everything that looked to peace; that Senator Douglas arraigned them as trying to precipitate secession, referred to Jefferson Davis as one who sought conciliation, and called upon the Republican Senators to tell what they would do, if anything, to restore harmony and prevent disunion. They did not even deign a response. Thus, by their sullen silence, they made confession (without avoidance) of their stubborn purpose to hold up no hand raised to maintain the Union...."

Footnote 108: (return)

"History of the Civil war," by the Count of Paris; American translation, vol. i, p. 122.

Footnote 109: (return)

Ibid, p. 125.

Footnote 110: (return)

Subjoined are the resolutions referred to, adopted by the Senators from Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkansas. Messrs. Toombs, of Georgia, and Sebastian, of Arkansas, are said to have been absent from the meeting:

"Resolved, That, in our opinion, each of the States should, as soon as may be, secede from the Union.

"Resolved, That provision should be made for a convention to organize a confederacy of the seceding States: the Convention to meet not later than the 15th of February, at the city of Montgomery, in the State of Alabama.

"Resolved, That, in view of the hostile legislation that is threatened against the seceding States, and which may be consummated before the 4th of March, we ask instructions whether the delegations are to remain in Congress until that date, for the purpose of defeating such legislation.

"Resolved, That a committee be and are hereby appointed, consisting of Messrs. Davis, Slidell, and Mallory, to carry out the objects of this meeting."

CHAPTER II.

"The sovereignty and jurisdiction of the Commonwealth extend to all places within the boundaries thereof, subject only to such rights of concurrent jurisdiction as have been or may be granted over any places ceded by the Commonwealth to the United States."¹¹¹

In the acts of cession of the respective States, the terms and conditions on which the grant is made are expressed in various forms and with differing degrees of precision. The act of New York, granting the use of a site for the Brooklyn Navy-Yard, may serve as a specimen. It contains this express condition:

"The United States are to retain such use and jurisdiction, so long as said tract shall be applied to the defense and safety of the city and port of New York, and no longer.... But the jurisdiction hereby ceded, and the exemption from taxation herein granted, shall continue in respect to said property, and to each portion thereof, so long as the same shall remain the property of the United States, and be used for the purposes aforesaid, and no longer." The cession of the site of the Watervliet Arsenal is made in the same or equivalent terms, except that, instead of "defense and safety of the city and port of New York," etc., the language is, "defense and safety of the said State, and no longer."

South Carolina in 1805, by legislative enactment, ceded to the United States, in Charleston Harbor and on Beaufort River, various forts and fortifications, and sites for the erection of forts, on the following conditions, viz.:

"That, if the United States shall not, within three years from the passing of this act, and notification thereof by the Governor of this State to the Executive of the United States, repair the fortifications now existing thereon or build such other forts or fortifications as may be deemed most expedient by the Executive of the United States on the same, and keep a garrison or garrisons therein; in such case this grant or cession shall be void and of no effect."—("Statutes at Large of South Carolina," vol. v, p. 501.)

It will hardly be contended that the conditions of this grant were fulfilled, and, if it be answered that the State did not demand the restoration of the forts or sites, the answer certainly fails after 1860, when the controversy arose, and the unfounded assertion was made that those forts and sites had been purchased with the money, and were therefore the property, of the United States. The terms of the cession sufficiently manifest that they were free-will offerings of such forts and sites as belonged to the State; and public functionaries were bound to know that, by the United States law of March 20, 1794, it was provided "that no purchase shall be made where such lands are the property of a State."—(Act to provide for the defense of certain ports and harbors of the United States.)

The stipulations made by Virginia, in ceding the ground for Fortress Monroe and the Rip Raps, on the 1st of March, 1821, are as follows:

"An Act ceding to the United States the lands on Old Point Comfort, and the shoal called the Rip Raps.

"Whereas, It is shown to the present General Assembly that the Government of the United States is solicitous that certain lands at Old Point Comfort, and at the shoal called the Rip Raps, should be, with the right of property and entire jurisdiction thereon, vested in the said United States for the purpose of fortification and other objects of national defense:

"1. Be it enacted by the General Assembly, That it shall be lawful and proper for the Governor of this Commonwealth, by conveyance or deeds in writing under his hand and the seal of the State, to transfer, assign, and make over unto the said United States the right of property and title, as well as all the jurisdiction which this Commonwealth possesses over the lands and shoal at Old Point Comfort and the Rip Raps:...

"2. And be it further enacted, That, should the said United States at any time abandon the said lands and shoal, or appropriate them to any other purposes than those indicated in the preamble to this act, that then, and in that case, the same shall revert to and revest in this Commonwealth."¹¹²

By accepting such grants, under such conditions, the Government of the United States assented to their propriety, and the principle that holds good in any one case is of course applicable to all others of the same sort, whether expressly asserted in the act of cession or not. Indeed, no express declaration would be necessary to establish a conclusion resulting so directly from the nature of the case, and the settled principles of sovereignty and eminent domain.

A State withdrawing from the Union would necessarily assume the control theretofore exercised by the General Government over all public defenses and other public property within her limits. It would, however, be but fair and proper that adequate compensation should be made to the other members of the partnership, or their common agent, for the value of the works and for any other advantage obtained by the one party, or loss incurred by the other. Such equitable settlement, the seceding States of the South, without exception, as I believe, were desirous to make, and prompt to propose to the Federal authorities.

On the secession of South Carolina, the condition of the defenses of Charleston Harbor became a subject of anxiety with all parties. Of the three forts in or at the entrance of the harbor, two were unoccupied, but the third (Fort Moultrie) was held by a garrison of but little more than one hundred men—of whom only sixty-three were said to be effectives—under command of Major Robert Anderson, of the First Artillery.

About twelve days before the secession of South Carolina, the representatives in Congress from that State had called on the President to assure him, in anticipation of the secession of the State, that no purpose was entertained by South Carolina to attack, or in any way molest, the forts held by the United States in the harbor of Charleston—at least until opportunity could be had for an amicable settlement of all questions that might arise with regard to these forts and other public property—provided that no reënforcements should be sent, and the military status should be permitted to remain unchanged. The South Carolinians understood Mr. Buchanan as approving of this suggestion, although declining to make any formal pledge.

It appears, nevertheless, from subsequent developments, that both before and after the secession of South Carolina preparations were secretly made for reënforcing Major Anderson, in case it should be deemed necessary by the Government at Washington.¹¹³ On the 11th of December instructions were communicated to him, from the War Department, of which the following is the essential part:

"You are carefully to avoid every act which would needlessly tend to provoke aggression; and for that reason you are not, without evident and imminent necessity, to take up any position which could be construed into the assumption of a hostile attitude, but you are to hold possession of the forts in this harbor, and, if attacked, you are to defend yourself to the last extremity. The smallness of your force will not permit you, perhaps, to occupy more than one of the three forts, but an attack on, or attempt to take possession of either of them, will be regarded as an act of hostility, and you may then put your command into either of them which you may deem most proper to increase its power of resistance. You are also authorized to take similar defensive steps, whenever you have tangible evidence of a design to proceed to a hostile act."¹¹⁴

These instructions were afterward modified—as we are informed by Mr. Buchanan—so as, instead of requiring him to defend himself "to the last extremity," to direct him to do so as long as any reasonable hope remained of saving the fort.¹¹⁵

Immediately after the secession of the State, the Convention of South Carolina deputed three distinguished citizens of that State—Messrs. Robert W. Barnwell, James H. Adams, and James L. Orr—to proceed to Washington, "to treat with the Government of the United States for the delivery of the forts, magazines, lighthouses, and other real estate, with their appurtenances, within the limits of South Carolina, and also for an apportionment of the public debt, and for a division of all other property held by the Government of the United States, as agent of the confederated States, of which South Carolina was recently a member; and generally to negotiate as to all other measures and arrangements proper to be made and adopted in the existing relation of the parties, and for the continuance of peace and amity between this Commonwealth and the Government at Washington."

The Commissioners, in the discharge of the duty intrusted to them, arrived in Washington on the 26th of December. Before they could communicate with the President, however—indeed, on the morning after their arrival—they were startled, and the whole country electrified, by the news that, during the previous night, Major Anderson had "secretly dismantled Fort Moultrie,"¹¹⁶ spiked his guns, burned his gun-carriages, and removed his command to Fort Sumter, which occupied a more commanding position in the harbor. This movement changed the whole aspect of affairs. It was considered by the Government and people of South Carolina as a violation of the implied pledge of a maintenance of the status quo; the remaining forts and other public property were at once taken possession of by the State; and the condition of public feeling became greatly exacerbated. An interview between the President and the Commissioners was followed by a sharp correspondence, which was terminated on the 1st of January, 1861, by the return to the Commissioners of their final communication, with an endorsement stating that it was of such a character that the President declined to receive it. The negotiations were thus abruptly broken off. This correspondence may be found in the Appendix.¹¹⁷

In the mean time, Mr. Cass, Secretary of State, had resigned his position early in December, on the ground of the refusal of the President to send reënforcements to Charleston. On the occupation of Fort Sumter by Major Anderson, Mr. Floyd, Secretary of War, taking the ground that it was virtually a violation of a pledge given or implied by the Government, had asked that the garrison should be entirely withdrawn from the harbor of Charleston, and, on the refusal of the President to consent to this, had tendered his resignation, which was promptly accepted.¹¹⁸

This is believed to be a correct outline of the earlier facts with regard to the Charleston forts, and in giving it I have done so, as far as possible, without prejudice, or any expression of opinion upon the motives of the actors.

The kind relations, both personal and political, which had long existed between Mr. Buchanan and myself, had led him, occasionally, during his presidency, to send for me to confer with him on subjects that caused him anxiety, and warranted me in sometimes calling upon him to offer my opinion on matters of special interest or importance. Thus it was that I had communicated with him freely in regard to the threatening aspect of events in the earlier part of the winter of 1860-'61. When he told me of the work that had been done, or was doing, at Fort Moultrie—that is, the elevation of its parapet by crowning it with barrels of sand—I pointed out to him the impolicy as well as inefficiency of the measure. It seemed to me impolitic to make ostensible preparations for defense, when no attack was threatened; and the means adopted were inefficient, because any ordinary field-piece would knock the barrels off the parapet, and thus to render them only hurtful to the defenders. He inquired whether the expedient had not been successful at Fort Brown, on the Rio Grande, in the beginning of the Mexican war, and was answered that the attack on Fort Brown had been made with small-arms, or at great distance.

After the removal of the garrison to the stronger and safer position of Fort Sumter, I called upon him again to represent, from my knowledge of the people and the circumstances of the case, how productive the movement would be of discontent, and how likely to lead to collision. One of the vexed questions of the day was, by what authority the collector of the port should be appointed, and the rumor was, that instructions had been given to the commanding officer at Fort Sumter not to allow vessels to pass, unless under clearance from the United States collector. It was easy to understand that, if a vessel were fired upon under such circumstances, it would be accepted as the beginning of hostilities—a result which both he and I desired to avert, as the greatest calamity that could be foreseen or imagined. My opinion was, that the wisest and best course would be to withdraw the garrison altogether from the harbor of Charleston.

The President's objection to this was, that it was his bounden duty to preserve and protect the property of the United States. To this I replied, with all the earnestness the occasion demanded, that I would pledge my life that, if an inventory were taken of all the stores and munitions in the fort, and an ordnance-sergeant with a few men left in charge of them, they would not be disturbed. As a further guarantee, I offered to obtain from the Governor of South Carolina full assurance that, in case any marauders or lawless combination of persons should attempt to seize or disturb the property, he would send from the citadel of Charleston an adequate guard to protect it and to secure its keepers against molestation.

The President promised me to reflect upon this proposition, and to confer with his Cabinet upon the propriety of adopting it. All Cabinet consultations are secret; which is equivalent to saying that I never knew what occurred in that meeting to which my proposition was submitted. The result was not communicated to me, but the events which followed proved that the suggestion was not accepted.

Major Anderson, who commanded the garrison, had many ties and associations that bound him to the South. He performed his part like the true soldier and man of the finest sense of honor that he was; but that it was most painful to him to be charged with the duty of holding the fort as a threat to the people of Charleston is a fact known to many others as well as to myself. We had been cadets together. He was my first acquaintance in that corps, and the friendship then formed was never interrupted. We had served together in the summer and autumn of 1860, in a commission of inquiry into the discipline, course of studies, and general condition of the United States Military Academy. At the close of our labors the commission had adjourned, to meet again in Washington about the end of the ensuing November, to examine the report and revise it for transmission to Congress. Major Anderson's duties in Charleston Harbor hindered him from attending this adjourned meeting of the commission, and he wrote to me, its chairman, to explain the cause of his absence. That letter was lost when my library and private papers were "captured" from my home in Mississippi. If any one has preserved it as a trophy of war, its publication would show how bright was the honor, how broad the patriotism of Major Anderson, and how fully he sympathized with me as to the evils which then lowered over the country.

In comparing the past and the present among the mighty changes which passion and sectional hostility have wrought, one is profoundly and painfully impressed by the extent to which public opinion has drifted from the landmarks set up by the sages and patriots who formed the constitutional Union, and observed by those who administered its government down to the time when war between the States was inaugurated. Mr. Buchanan, the last President of the old school, would as soon have thought of aiding in the establishment of a monarchy among us as of accepting the doctrine of coercing the States into submission to the will of a majority, in mass, of the people of the United States. When discussing the question of withdrawing the troops from the port of Charleston, he yielded a ready assent to the proposition that the cession of a site for a fort, for purposes of public defense, lapses, whenever that fort should be employed by the grantee against the State by which the cession was made, on the familiar principle that any grant for a specific purpose expires when it ceases to be used for that purpose. Whether on this or any other ground, if the garrison of Fort Sumter had been withdrawn in accordance with the spirit of the Constitution of the United States, from which the power to apply coercion to a State was deliberately and designedly excluded, and if this had been distinctly assigned as a reason for its withdrawal, the honor of the United States Government would have been maintained intact, and nothing could have operated more powerfully to quiet the apprehensions and allay the resentment of the people of South Carolina. The influence which such a measure would have exerted upon the States which had not yet seceded, but were then contemplating the adoption of that extreme remedy, would probably have induced further delay; and the mellowing effect of time, with a realization of the dangers to be incurred, might have wrought mutual forbearance—if, indeed, anything could have checked the madness then prevailing among the people of the Northern States in their thirst for power and forgetfulness of the duties of federation.

It would have been easy to concede this point. The little garrison of Fort Sumter served only as a menace; for it was utterly incapable of holding the fort if attacked, and the poor attempt soon afterward made to reënforce and provision it, by such a vessel as the Star of the West, might by the uncharitable be readily construed as a scheme to provoke hostilities. Yet, from my knowledge of Mr. Buchanan, I do not hesitate to say that he had no such wish or purpose. His abiding hope was to avert a collision, or at least to postpone it to a period beyond the close of his official term. The management of the whole affair was what Talleyrand describes as something worse than a crime—a blunder. Whatever treatment the case demanded, should have been prompt; to wait was fatuity.

The ill-advised attempt secretly to throw reënforcements and provisions into Fort Sumter, by means of the steamer Star of the West, resulted in the repulsion of that vessel at the mouth of the harbor, by the authorities of South Carolina, on the morning of the 9th of January. On her refusal to heave-to, she was fired upon, and put back to sea, with her recruits and supplies. A telegraphic account of this event was handed me, a few hours afterward, when stepping into my carriage to go to the Senate-chamber. Although I had then, for some time, ceased to visit the President, yet, under the impulse of this renewed note of danger to the country, I drove immediately to the Executive mansion, and for the last time appealed to him to take such prompt measures as were evidently necessary to avert the impending calamity. The result was even more unsatisfactory than that of former efforts had been.

On the same day the special message of the President on the state of the Union, dated the day previous (8th of January), was submitted to Congress. This message was accompanied by the first letter of the South Carolina Commissioners to the President, with his answer, but of course not by their rejoinder, which he had declined to receive. Mr. Buchanan, in his memoirs, complains that, immediately after the reading of his message, this rejoinder (which he terms an "insulting letter") was presented by me to the Senate, and by that body received and entered upon its journal.¹¹⁹ The simple truth is, that, regarding it as essential to a complete understanding of the transaction, and its publication as a mere act of justice to the Commissioners, I presented and had it read in the Senate. But its appearance upon the journal as part of the proceedings, instead of being merely a document introduced as part of my remarks, was the result of a discourteous objection, made by a so-called "Republican" Senator, to the reading of the document by the Clerk of the Senate at my request. This will be made manifest by an examination of the debate and proceedings which ensued.¹²⁰ The discourtesy recoiled upon its author and supporters, and gave the letter a vantage-ground in respect of prominence which I could not have foreseen or expected.

The next day (January 10th) the speech was delivered, the greater part of which may be found in the Appendix¹²¹—the last that I ever made in the Senate of the United States, except in taking leave, and by the sentiments of which I am content that my career, both before and since, should be judged.

The history of Fort Sumter during the remaining period, until the organization of the Confederate Government, may be found in the correspondence given in the Appendix.¹²² From this it will be seen that the authorities of South Carolina still continued to refrain from any act of aggression or retaliation, under the provocation of the secret attempt to reënforce the garrison, as they had previously under that of its nocturnal transfer from one fort to another.

Another Commissioner (the Hon. I. W. Hayne) was sent to Washington by the Governor of South Carolina, to effect, if possible, an amicable and peaceful transfer of the fort, and settlement of all questions relating to property. This Commissioner remained for nearly a month, endeavoring to accomplish the objects of his mission, but was met only by evasive and unsatisfactory answers, and eventually returned without having effected anything.

There is one passage in the last letter of Colonel Hayne to the President which presents the case of the occupancy of Fort Sumter by the United States troops so clearly and forcibly that it may be proper to quote it. He writes as follows:

"You say that the fort was garrisoned for our protection, and is held for the same purposes for which it has been ever held since its construction. Are you not aware, that to hold, in the territory of a foreign power, a fortress against her will, avowedly for the purpose of protecting her citizens, is perhaps the highest insult which one government can offer to another? But Fort Sumter was never garrisoned at all until South Carolina had dissolved her connection with your Government. This garrison entered it in the night, with every circumstance of secrecy, after spiking the guns and burning the gun-carriages and cutting down the flag-staff of an adjacent fort, which was then abandoned. South Carolina had not taken Fort Sumter into her own possession, only because of her misplaced confidence in a Government which deceived her."