Buchanan and Black – The Final Word on the Constitutionality of Secession

Kenneth Bachand

According to Buchanan biographer George Ticknor Curtis, Among the Buchanan Papers of the Historical Society of Pennsylvania, in a box labeled "Buchanan Papers-Nahum Capen, Black, & Brewster," there is a paper in the handwriting of Attorney General Judge Jeremiah Black, dated November 17, 1860, and endorsed by President Buchanan, that lists certain questions propounded to him by the president in respect to the situation involving the Southern states. (Source: George Ticknor Curtis, Life of Buchanan, Fifteenth President of the United States, Vol. II, (Harper, 1883), p. 319) 

At that time, President Buchanan wrote,

“17 November, 1860. SIR, The excitement in the Southern States caused by the recent presidential election and by the previous expressions in the North of hostility to Southern people and their domestic institutions may produce in some places resistance to the laws of the Union. As I desire to be guided in this emergency solely by the Constitution, and as there are several important points obscure enough to need some exposition, I have to require your opinion in writing on the following questions:

1. In case of a conflict between the authorities of any State and those of the United States, can there be any doubt that the laws of the Federal Government, if constitutionally passed, are supreme?

2. What is the extent of my official power to collect the duties on imports at a port where the revenue laws are resisted by a force which drives the collector from the custom house?

3. What right have I to defend the public property (for instance, a fort, arsenal and navy yard), in case it should be assaulted?

4. What are the legal means at my disposal for executing those laws of the United States which are usually administered through the courts and their officers?

5. Can a military force be used for any purpose whatever under the Acts of 1795 and 1807, within the limits of a State where there are no Judges, marshal or other civil officers?

I will thank you to give this subject your early attention and let me have your opinion without loss of time.”

Judge Black's opinion bears the date November 20, 1860, one month to the day prior to South Carolina declaring independence from the United States. And ironically, although secession was being talked about everywhere from farmers in their fields to politicians in the houses of Congress, none of Buchanan’s five questions was focused specifically on that subject. So much of the opinion as includes the points which are specially controverted and criticised is here given—about one-half of the entire document.

(Source: Curtis, ibid., Pp. 319–324.  See also “Opinion of Judge Black, November 20, 1860,” James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield, with a review of the events which led to the political revolution of 1860, Vol. I, (The Henry Bill Publishing Company, 1884), pp. 603–605; THE WORKS OF JAMES BUCHANAN, Comprising his Speeches, State Papers, and Private Correspondence Collected and Edited By JOHN BASSETT MOORE, Vol. XI, (Philadelphia & London, J. B. Lippincott Company, 1910), pp. 860–868, as found in the Dickinson College Digital Collection; and 9 Opinions of the Attorneys General, 517–526.)

The specific portions of the militia acts of 1795 and 1807 referred to by Judge Black follow here and precede his opinions.

The Militia Act of 1795:

An Act to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrection and repel invasions, and to repeal the act now in force for those purposes.  [The act to be repealed being the Militia Act of 1792]

Be it enacted, &c., That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper. And, in case of an insurrection in any State against the Government thereof, it shall be lawful for the President of the United States, on application of the Legislature of such State, or of the Executive, (when the Legislature cannot be convened,) to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

The Militia Act of 1807:

ANNALS OF CONGRESS NINTH CONGRESS. SESS. II. CH. 39, 1807. Page 443 STATUTE II. March 3, 1807. CHAP. IX. - An Act authorizing the  employment of the land and naval forces of the United States, in cases of insurrections.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state, or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

APPROVED, March 3, 1807. 

Judge Black’s opinion (unedited)

(Note: The paragraphs have been numbered to facilitate referencing in the notes that follow.)

“(1) I come now to the point in your letter which is probably of the greatest practical importance. By the Act of 1807 you may employ such parts of the land and naval forces as you may judge necessary for the purpose of causing the laws to be duly executed, in all cases where it is lawful to use the militia for the same purpose. By the Act of 1795 the militia may be called forth 'whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State by combinations too powerful to be suppressed by the ordinary course of Judicial proceedings, or by the power vested in the marshals.' This imposes upon the President the sole responsibility of deciding whether the exigency has arisen which requires the use of military force, and in proportion to the magnitude of that responsibility will be his care not to overstep the limits of his legal and just authority.

(2) The laws referred to in the Act of 1795 are manifestly those which are administered by the judges, and executed by the ministerial officers of the courts for the punishment of crime against the United States, for the protection of rights claimed under the Federal Constitution and laws, and for the enforcement of such obligations as come within the cognizance of the Federal Judiciary. To compel obedience to these laws, the courts have authority to punish all who obstruct their regular administration, and the marshals and their deputies have the same powers as sheriffs and their deputies in the several States in executing the laws of the States. These are the ordinary means provided for the execution of the laws; and the whole spirit of our system is opposed to the employment of any other, except in cases of extreme necessity arising out of great and unusual combinations against them. Their agency must continue to be used until their incapacity to cope with the power opposed to them shall be plainly demonstrated. It is only upon clear evidence to that effect that a military force can be called into the field. Even then its operations must be purely defensive. It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof. It can do no more than what might and ought to be done by a civil posse, if a civil posse could be raised large enough to meet the same opposition. On such occasions, especially, the military power must be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all.

(3) But what if the feeling in any State against the United States should become so universal that the Federal officers themselves (including judges, district attorneys, and marshals) would be reached by the same influences, and resign their places? Of course, the first step would be to appoint others in their stead, if others could be got to serve. But in such an event, it is more than probable that great difficulty would be found in filling the offices. We can easily conceive how it might become altogether impossible. We are therefore obliged to consider what can be done in case we have no courts to issue judicial process, and no ministerial officers to execute it. In that event troops would certainly be out of place, and their use wholly illegal. If they are sent to aid the courts and marshals, there must be courts and marshals to be aided. Without the exercise of those functions which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government has at its command. Under such circumstances to send a military force into any State, with orders to act against the people, would be simply making war upon them.

(4) The existing laws put and keep the Federal Government strictly on the defensive. You can use force only to repel an assault on the public property and aid the Courts in the performance of their duty. If the means given you to collect the revenue and execute the other laws be insufficient for that purpose, Congress may extend and make them more effectual to those ends.

(5) If one of the States should declare her independence, your action cannot depend on the rightfulness of the cause upon which such declaration is based. Whether the retirement of the State from the Union be the exercise of a right reserved in the Constitution, or a revolutionary movement, it is certain that you have not in either case the authority to recognize her independence or to absolve her from her Federal obligations. Congress, or the other States in Convention assembled, must take such measures as may be necessary and proper. In such an event, I see no course for you but to go straight onward in the path you have hitherto trodden — that is, execute the laws to the extent of the defensive means placed in your hands, and act generally upon the assumption that the present constitutional relations between the States and the Federal Government continue to exist, until a new code of things shall be established either by law or force.

(6) Whether Congress has the constitutional right to make war against one or more States, and require the Executive of the Federal Government to carry it on by means of force to be drawn from the other States, is a question for Congress itself to consider. It must be admitted that no such power is expressly given; nor are there any words in the Constitution which imply it. Among the powers enumerated in Article 1, Section 8 is that 'to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water.' This certainly means nothing more than the power to commence and carry on hostilities against the foreign enemies of the nation. Another clause in the same section gives Congress the power 'to provide for calling forth the militia,' and to use them within the limits of the State. But this power is so restricted by the words which immediately follow that it can be exercised only for one of the following purposes: To execute the laws of the Union; that is, to aid the Federal officers in the performance of their regular duties. To suppress insurrections against the State; but this is confined by Article 4, Section 4, to cases in which the State herself shall apply for assistance against her own people. To repel the invasion of a State by enemies who come from abroad to assail her in her own territory. All these provisions are made to protect the States, not to authorize an attack by one part of the country upon another; to preserve the peace, and not to plunge them into civil war. Our forefathers do not seem to have thought that war was calculated 'to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.' There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious, as a means of holding the States together.

(7) If it be true that war cannot be declared, nor a system of general hostilities carried on by the Central Government against a State, then it seems to follow that an attempt to do so would be ipso facto an expulsion of such State from the Union. Being treated as an alien and an enemy, she would be compelled to act accordingly. And if Congress shall break up the present Union by unconstitutionally putting strife and enmity and armed hostility between different sections of the country, instead of the domestic tranquility which the Constitution was meant to insure, will not all the States be absolved from their Federal obligations? Is any portion of the people bound to contribute their money or their blood to carry on a contest like that?

(8) The right of the General Government to preserve itself in its whole constitutional vigor by repelling a direct and positive aggression upon its property or its officers cannot be denied. But this is a totally different thing from an offensive war to punish the people for the political misdeeds of their State Government, or to enforce an acknowledgment that the Government of the United States is supreme. The States are colleagues of one another, and if some of them shall conquer the rest, and hold them as subjugated provinces, it would totally destroy the whole theory upon which they are now connected.

(9) If this view of the subject be correct, as I think it is, then the Union must utterly perish at the moment when Congress shall arm one part of the people against another for any purpose beyond that of merely protecting the General Government in the exercise of its proper constitutional functions.

I am, very respectfully, yours, etc.,”

J. S. BLACK.

We may summarize Judge Black’s Arguments as follows:

1. The president must not overstep the limits of his legal and just authority. 

2. The operations of any military force must be purely defensive. 

3. To send a military force into any State to act against the people would be to make war upon them. 

4. The laws put the Federal Government strictly on the defensive, and force can be used only to repel an assault on public property. 

5. In the event of the secession of any state, the president must execute the laws to the extent of the defensive means. 

6. The Constitution does not  give Congress the right to make war against any State or to require the president to carry it on except when the State applies for assistance against her own people or to repel an invasion of a State by enemies from abroad, not to plunge them into civil war. 

7. A declaration of war or hostilities by the Central Government against any State or states would absolve all the States from their Federal obligations. 

8. The General Government may not engage in a war to punish the people for the political misdeeds of their State Governments or to force them to acknowledge  the supremacy of the central Government.  Some conquering others  and holding them as “subjugated provinces” would destroy the theory upon which they were united. 

9. The arming of any portion of the people against another save for “protecting the General Government in the exercise of its constitutional functions” would constitute an end of the Union.

Seventeen years earlier, Justice Joseph Story of the U.S. Supreme Court, though not an advocate of secession, quoted legal scholar George Tucker, saying in reference to Article IV, Section 4 of the Constitution: “It may not be amiss further to observe, (in the language of another commentator,) ‘that every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence, is taken away by that part of the provision, which renders an application from the legislature, or executive authority of the state endangered necessary to be made to the general government, before its interference can be at all proper.’"  (Source: Commentaries on the Constitution of the United States, 1833, volume 3, sections 1808, 1819)

John Remington Graham said of  the use of federal troops within a state: "It is an historical fact that, on two occasions during their deliberations, the framers in the Philadelphia Convention voted to deny Congress the power of calling forth military forces of the Union to compel obedience of a state, and on two further occasions they voted to deny Congress the power of sending the Federal army or navy into the territory of any state, except as allowed under Article IV, Section 4 of the United States Constitution—to repel a foreign invasion or at the request of its legislature or governor to deal with domestic violence." (Source: Graham, op. cit., p. 287)

The most pertinent words from Judge Black’s opinion relative to the subject of this treatise are found in section 6 where he says, “There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious, as a means of holding the States together.”  As the secession of Southern states in 1860 and 1861 was neither un-Constitutional nor illegal; and as the Confederate States of America did not invade the United States of America, the right of the government to use the military to defend itself against an invasion by a foreign power cannot justify Lincoln’s call for 75,000 troops to force the seceded states back into the union.

It is interesting to note that in December, shortly after receiving Judge Black’s opinions, Buchanan promoted him from Attorney General to Secretary of State.  Two months later, in February of 1861, John Moncure Daniel, after seven years as  chargé d'affaires to Sardinia, returned home, met with the new Secretary of State, and reported him to have said, “Sir, slavery is but an accident in this quarrel. Slavery is only the John Doe and Richard Doe case, in which this mooted question is to be decided—whether your States shall continue their sovereignty and self-government, or the Northern majorities shall govern you and all of you as they please and according to their own separate interest. If they had not the point of slavery convenient, they would try it on other points just the same.”

(Source: Pen of Fire, John Moncure Daniel, Peter Bridges, Kent State University Press, 2002, p. 161)