As threats to secede increased throughout the South, northerners looked to Buchanan for some kind of response. Buchanan was opposed to secession, but since the U.S. Constitution provided no explicit remedy for such an event, he didn’t know if he could do anything about it. An article in the Philadelphia Press described the situation:
“Mr. Buchanan and his Cabinet seem to fold their hands and agree that there is nothing to prevent a revolutionary secession. There is a general submission to the scandalous idea that a State may peacefully secede from the Union. The question now arrises whether this acquiescence grows out of a desire to avoid responsibility, or to looste it upon the incoming Administration. Attourney General Black is much depressed, and the President throws up his hands in despair. He would like to deny the right of a State to secede, for this is his belief, but he hesitates to do so on account of his long and intimate connection with the Southern politicians. The end will, of course, be secession or revolution.”
At a cabinet meeting, Buchanan unveiled a proposal that he and Black had drawn up for the states to hold a convention to settle their differences. If the southern states made good on their threat to secede, Buchanan would use force to stop them if needed. According to Secretary of War John B. Floyd, the plan “met with extravagant commendation” from the northern members of the cabinet (Black, Lewis Cass, Isaac Toucey, and Joseph Holt).
Conversely, the southern cabinet members (Howell Cobb, Jacob Thompson, and Floyd) strongly opposed this proposal. Floyd wrote that Cobb and Thompson told Buchanan this meant “submission to Lincoln’s election,” which did not fit “the temper of the Southern people.” Floyd added, “I do not see what good can come of the paper, as prepared, and I do see how much mischief may flow from it.”
Buchanan felt that he could not take sides. He told Black that he was being guided by a “desire to stand between the factions… with my hand on the head of each counselling peace.” Rather than alienate half his cabinet by taking a firm stand one way or the other, Buchanan asked Black to draft another legal opinion on the issue that might placate everybody. Specifically, the president posed five legal questions to his attorney general:
- In a conflict between states and the Federal government, is there any doubt that Federal law is supreme?
- What official powers does the president have to collect customs in states that reject Federal tariff laws?
- What official powers does the president have to protect Federal property (i.e., military bases, forts, etc.) in the states?
- What legal means does the president have to enforce Federal laws that are usually administered through courts?
- Can the Federal government invoke the laws regarding militias and insurrections (1795 and 1807) in states where there are no Federal marshals or judges?
Black had established himself as a Unionist, but in his effort to satisfy Buchanan, he presented a lengthy legal response that gingerly danced around the president’s questions:
- States must obey Federal law as long as they remain in the Union.
- The president has a right to use force to collect customs duties, but he cannot wage an offensive war against a state.
- The president has the legal right to defend Federal property in the states.
- If Federal officials resigned their posts within the states, the president has the right to replace them with officials loyal to the U.S.
- The president “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.”
Black also opined that the president had no power to recognize the independence of any state that attempted to leave the Union:
“If one of the States should declare her independence, your action cannot depend upon 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.”
Black advised Buchanan to maintain his current course of action, despite the harsh criticism it was getting in the press:
“(E)xecute 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.”
So according to Black, states had no right to secede, but if the president tried to force states to stay in the Union, he would legitimize their claim that secession was legal. Buchanan had the right to use force to collect customs duties, but he could not wage an offensive war against a state. This left Buchanan in essentially the same position of inaction he had been in before asking for Black’s advice.
- Catton, Bruce and Long, E.B. (ed.), The Coming Fury. New York: Doubleday & Company, Inc. (Kindle Edition), 1961.
- Long, E.B. with Long, Barbara, The Civil War Day by Day. New York: Da Capo Press, Inc., 1971.