tion of the force of the whole against a delinquent State' came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed: 'The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts, by which it might be bound.' Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterward, on the 8th June, 1787, when incidentally adverting to the subject, he said: 'Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,' evidently meaning the then existing Congress of the old Confederation. Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterward? Shall we hold it as a province and govern it as by despotic power? In the nature of things we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy. . . The fact is that our Union rests upon public opinion,

and can never be cemented by the blood of its citizens shed in civil war. . . . Congress possesses many means of preserving it by conciliation, but the sword. was not placed in its hand to preserve it by force."

The foregoing reasoning of Buchanan was defective in the following respects: In the first place, the interpretation given to the proceedings of the Constitutional Convention of 1787 and to the remarks of Madison was not a correct one. As a matter of fact, as the report of the proceedings of the Convention shows, the grant to the General Government of an express power to coerce recalcitrant States was finally abandoned, not because it was held, as Buchanan declared, that it would be improper and inexpedient to vest such a power in the Central Government of a federal state, but because it was demonstrated by Sherman, Mason, and Madison, that such a grant was unnecessary in that, in the first place, the federal judiciary was given full authority to declare void all unconstitutional acts of the States; and, in the second place, that, should there be a refusal of obedience to federal laws, or to the decisions of the courts, the coercion that would have to be applied would be directed against individuals and not against the States in which they lived or of which they might be citizens. Thus Ellsworth in the convention of his State, speaking with reference to this point, after asserting that coercive power should be possessed by the Central Government, went on to say: "The only question is, shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come

out; where will they end? A necessary consequence of their principles is a war of the States, one against the other. I am for coercion of law-a coercion which acts only upon delinquent individuals. The Constitution does not attempt to coerce sovereign bodies-States in their political capacity. No coercion is applicable to such parties but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State it would involve the good and the bad, the innocent and guilty in the same calamity. But this legal coercion singles out the guilty individual and punishes him for breaking the laws of the Union."

To repeat, then, the proceedings of the Convention that formed, and of the Conventions that ratified, the Constitution, make it abundantly evident that it was intended that the new government should have full coercive authority in the matter of compelling obedience to its laws. It was not intended that the new government should have, and it was not believed that it did have, any authority to declare a State delinquent as a State, and to proceed against it as such by force; but it was intended that any or all of its citizens who might refuse obedience to federal law should be subject to such coercion as the General Government might see fit to apply, and be liable to such punishments as the laws of that government might impose. In other words, the fact was plainly seen at the time of the establishment of our National Government that in a Federal State, as distinguished from a mere Confederacy, by no possibility can a condition of

affairs arise in which it will be necessary or proper for the central power to employ force against one of its constituent Commonwealths as a political body. In a Confederacy, composed as it is of sovereign States, united with one another by a common treaty bond, the constituent States may as such resist the operation of general laws, and in such cases the coercion to be applied will properly be directed against them as States, and not against their citizens as individual violators of law. But in a sovereign Federal State the individual Commonwealths, as having a political status only as members of the Union, have not the legal power to place themselves, as political bodies, in opposition to the national will. Their legislatures, their courts, or their executive officials may attempt acts unwarranted by the federal Constitution or federal law, and they may even command that their citizens generally shall refuse obedience to some specified federal laws, or to the federal authorities generally, but in all such cases, such acts are, legally viewed, simply void, and all individuals obeying them subject to punishment as offenders against national law. The fact that their respective States have directed them to refuse obedience or to offer resistance to the execution of the federal laws can afford them no immunity from punishment, for no one can shelter himself behind an unconstitutional law, such a law, being, in truth, as we have seen, not law at all, but only an unsuccessful attempt at a law.

From the foregoing, then, it must appear that Buchanan, in his annual message to Congress, was

guilty of an ignoratio elenchi. The real problem by which he was confronted, was not whether or not he should employ the armed force of the Union against recalcitrant States, but whether or not he should enforce federal laws within such States against any resistance that individuals might offer. As a matter of fact, indeed, at the time that this message was prepared and transmitted to Congress, no State had actually seceded, and it was not until December 20, that the first ordinance of secession-by South Carolina-was adopted. Preparations for secession had, however, begun, and the Southerners had already taken the position that any attempt on the part of the National Government to strengthen its position in Fort Moultrie would be construed as equivalent to an act of coercion against South Carolina.

For a time Buchanan negotiated with the Commissioners sent by the State of South Carolina, and even prepared an answer to their demands which by its terms and form seemed to imply that South Carolina had put itself in a position that would enable the President to negotiate or "treat" with her as with a foreign power. Attorney-General Black strongly objected to this as practically implying that a State might, by its own act, place itself outside of the Union. He thereupon sent to the President a memorandum in which he said: "I think that every word and sentence which implies that South Carolina is in an attitude which enables the President to 'treat' or negotiate with her, or to receive her commissioners in the character of diplomatic ministers or agents, ought to be stricken out, and an explicit declaration