Note 74 — Chapter XV · 1860—November.

Mr. Jefferson Davis, who represents, with as much logical consistency as any one, the whole of the doctrine or theory of secession, has always maintained that the distinction between coercing a State, and coercing the individual inhabitants of that State to submit to the laws of the United States, is no distinction at all: that the people of the State are the State; and that to use a military force to execute the laws of the United States upon individuals, within the limits of a State that has seceded from the Union, is to make war upon the State. (See his speech in the Senate, January 10, 1861, and his recent work on the Rise and Fall of the Confederate Government. Index, verb. “Secession.”) Let us, for a moment, inquire whether Buchanan’s distinction was answered “by reason of its very absurdity.” 1. The States, in their corporate and political capacity, are not the subjects or objects of Federal legislation. The legislative powers of the Federal Constitution are not intended to be exercised over States, but they are intended to be exercised over individuals. An act of Congress never commands a State to do anything; it commands private individuals to do a great many things. The States are prohibited by the Constitution from doing certain things, but these prohibitions execute themselves through the action of the judicial power upon persons. No State can be acted upon by the judicial power at the instance of the United States. Every inhabitant of a State can be acted upon by the judicial power, in regard to anything that is within the scope of the legislative powers of the Constitution. 2. The coercion of individuals to obey the laws of the United States constitutes the great difference between our present Constitution and the Articles of Confederation. 3. The right to use force to execute the laws of the United States, by removing all obstructions to their execution, not only results from the power to legislate on the particular subject, but it is expressly recognized by the Constitution. The character of that force and the modes in which it may be employed, depend both on direct constitutional provision, and on the legislative authority over all the people of the United States in respect to certain subjects and relations. All this will be conceded to be true, so long as a State remains in the Union. Does it cease to be true, when a State interposes her sovereign will, and says that the laws of the United States shall not be executed within her limits, because she has withdrawn the powers which she deposited with the General Government? What does this make, but a new case of obstruction to the execution of the Federal laws, to be removed by acting on the individuals through whom the obstruction is practically tried? And if, in the removal of the obstruction, the use of military power becomes necessary, is war made upon the State? It is not, unless we go the whole length of saying that the interposition of the sovereign will of the State ipso facto makes her an independent power, erects her into a foreign nation, and makes her capable of being dealt with as one enemy is dealt with by another. To deny the right of the United States to execute its laws, notwithstanding what is called the secession of a State, is to impale one’s self upon the other horn of the dilemma: for if that right does not exist, it must be because the State has become absolutely free and independent of the United States, and may be made a party to an international war. Mr. Buchanan saw and constantly and consistently acted upon the true distinction between making war upon a State, and enforcing the laws of the United States upon the inhabitants of a State.