Tuesday, November 20, 1860
President Buchanan received the answer to the five questions he asked Attorney General Jeremiah Black on the 17th.
The reply came in the form of a lengthy letter. Basically, the states were subject to the laws of the Federal government while they remained in the Union. The president had all rights to defend public property (such as forts and arsenals) – it was government property, it could be defended by the government. If officers of the federal courts left their posts, they must be replaced by others faithful to the Federal government.
Most importantly, 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.”
On the question of secession, everything was much foggier.
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.
His final advice to the president was to keep upon the same path as he was already upon – the same course of action (or lack thereof) that was so criticized in the press. This was a game of wait and see. “[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.”1
Black’s letter to Buchanan, while ripe with constitutional law and peppered with lawyerly guidance, really didn’t help Buchanan out all that much.
- From The Life of James Buchanan: Fifteenth President of the United States, Volume 2 by George Ticknor Curtis, Harper & Brothers, 1883. [↩]