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Doc. 12.-a disunionist answered. Letters of J. L. Orr and Amos Kendall. Ex-speaker Orb to Hon. Amos Kendall.

Anderson, S. C., Aug. 16, 1860.
My dear sir:--I have received your favor of the ninth inst. Your age, experience, and ability entitle your opinions to great weight on every reflecting mind, and I regret to learn from your letter that your dissent from my recommendation that the honor and safety of the South require its prompt secession from the Union, in the event of the election of a black republican to the presidency. You say your “mind is equally clear that the South has long had a peaceful remedy within her own reach, and has it still, though impaired by the recent conduct of some of her sons,” You would greatly oblige me by a full exposition of your opinions upon that point, as well as the remedy to be resorted to by us, should the Government, in November, pass into the hands of a party whose declared purpose is to destroy our property, amounting in value at the present time to not less than three billions one hundred and fifty millions of dollars.

Can it be prudent, safe, or manly in the South to submit to the domination of a party whose declared purpose is to destroy such an amount of property and subvert our whole social and industrial policy?

In glancing at the evil and remedy, I invite specially your attention--

1. To the persistent refusal of many of the free States, and to large bodies of men in all of then, to execute the fugitive slave law.

2. To the untiring efforts of fanatics who come to the slave States under the guise of preachers, teachers, &c., in inveigling away our slaves, and to the general sympathy with their nefarious purposes, evinced by the facilities furnished them by the underground railroad in spiriting away our slaves beyond the reach of their owners.

3. To the raid of John Brown, and the sympathy which his well-merited execution evoked.

4. To the recent insurrectionary movements in Texas--projected and carried out by abolition emissaries, where the incendiary torch of the slave lighted by abolition traitors, has reduced to ashes one million of dollars' worth of property, and where the timely discovery of the hellish scheme alone saved the lives of thousands of men, women, and children.

These are the natural and necessary results of the teachings of black republicanism; and if we have such developments under an administration which professes to guard our constitutional rights, in the name of Heaven what may we not expect when a great party takes the Government and its machinery under its control, avowing openly its purpose to be the extirpation of African slavery wherever it does exist?

Is it wise, if we do not mean to submit to such consequences, to allow a black republican President to be inaugurated, and put him in possession of the army, the navy, the treasury, the armories and arsenals, the public property — in fact, the whole machinery of the Government, with its appendants and appurtenances? If the South should think upon this subject as I do, no black republican President would ever execute any law within her borders, unless at the point of the bayonet, and over the dead bodies of her slain sons.

In your letter you say that you have not taken me to be of that class of men in the South who for years past have been making and seeking pretexts for destroying the Union. You have not misjudged me nor my designs. I have a profound and abiding affection for the Union of our fathers, and deeply deplore the existence of the causes which are rapidly tending to its destruction. During the whole of my congressional career, I sought to tranquillize sectional strife. When I first entered the House, the abolition party, headed by Giddings and Wilmot, numbered eight; ten years have rolled away, and now that party is a majority of the whole House. Is it not time that the South should begin to look to her safety and independence?

I trust that the impending storm may be averted; that our rights and the Union may be saved; that fraternal regard may be restored; and that our country may go on in the highway of prosperity that it has so successfully trod for the last seventy years. This is the aspiration of my heart, and yet I am painfully impressed with the conviction that it will never be realized. I am, very truly, your friend and obedient servant,

Mr. Kendall's reply.

Washington, Sept. 10, 1860.
Hon. James L. Orr--My Dear Sir: Your letter of the 16th ult. reached Washington while I was absent in the North.

Though I did not contemplate, when I wrote you on the 9th ult., any thing beyond a limited private correspondence, yet having no opinion on the portentous condition of public affairs which I have a motive to conceal, or am ashamed to avow, I cheerfully comply with your suggestions.

You quote from my former letter the declaration that “my mind is equally clear that the South has long had a peaceful remedy within her reach, and has it still, though impaired by the recent conduct of some of her sons,” and you ask of me a full explanation of my opinions on that point as well as “the remedy to be resorted to by us — the South--should the Government, in November, pass into the hands of a party whose declared purpose is to destroy our property, amounting in value at the present time, to not less than three billions one hundred and fifty millions of dollars.” You ask, “Can [128] it be prudent, safe, or manly in the South to submit to the domination of a party whose declared purpose is to destroy such an amount of property and subvert our whole social and industrial policy?”

In a subsequent part of your letter you call my attention to certain grievances endured by the South, and conclude your commentary thereon as follows, viz.:

Is it wise, if we do not intend to submit to such consequences, to allow a black republican President to be inaugurated, and put him in possession of the army, the navy, the treasury, the armories and arsenals, the public property — in fact, the whole machinery of the Government, with its appendants and appurtenances? If the South should think upon this subject as I do, no black republican President should ever execute any law within her borders, unless at the point of the bayonet, and over the dead bodies of her slain sons.

I shudder at such sentiments coming from one whose sincerity I cannot doubt. The time was when 150,000 men tendered their services to the President to aid him, if necessary, in executing the laws of the United States; the time will be when 200,000 will volunteer for a like purpose, should resistance be made to his legitimate authority, no matter by what party he may be elected.

There seems to me to be, in the course recommended to the South, in the event of Mr. Lincoln's election to the presidency, a fatuity little short of madness. Would you pull down the canopy of heaven because wrong and crime exist beneath it? Would you break up the earth on which we tread because earthquakes sometimes heave it and pestilence walks its surface? This Union, sir, is too precious to the people it protects, North and South, East and West, to be broken up, even should a black republican be elected President next November. Should the attempt be made, a united North, and three-fourths of a divided South, would spring to the rescue. No, no, the remedy for the evils of which you justly complain are to be found within the Union, and not among its bloody ruins.

I admit that the grievances which you enumerate are hard to be borne; but a few Southern men are not without responsibility for their existence. The general sentiment of the country, North and South, at the close of the Revolutionary War was anti-slavery. It has changed in the South, but remains unchanged in the North. There, however, it has been roused to unwonted activity by the preachings of fanatics and the denunciations of political demagogues, aided not a little by the arts, the language, and the violence of Southern disunionists.

It is needless to give in detail all the causes which have brought the politics of the country to their present deplorable condition. Suffice it to say that you have long had in the South a small party of able men whose aim has been to destroy the Union; that, as a preliminary to their main design, they have sought to break up the democratic party; that their means for accomplishing this end were to act with it, and force upon it every possible issue obnoxious to the general sentiment of the North; that they have dragged after then the true Union men of the South, partly through their fears of being considered laggard in their devotion to Southern interests, and partly through ambition for political distinction; to make the democratic party as odious as possible at the North, they became the advocates of slavery on principle, justified the African slave trade, and denounced the laws prohibiting it. By these acts, and frequent threats of disunion, they enabled the enemies of democracy in the North to denounce them as pro-slavery men, and to all this they added occasional taunts that they were no more to be relied upon for the protection of Southern rights than their opponents. By these means the democratic party was reduced before the last presidential election to a minority in most of the Northern states, and in the residue had the utmost difficulty in maintaining their ascendency. In the mean time, the union men in the South had measurably ceased to consider the democratic party as friendly to the Union; and the union sentiment in the border slave States, whose interest in its preservation is preeminent, sought expression through the American party. To such an extent had the democratic party been weakened by the insidious policy of their disunion allies, that they had the utmost difficulty in electing an old practical statesman over a young man who had nothing to recomend him beyond a few successful explorations of our wilderness territory.

There were those who foresaw that longer affiliation with Southern disunionists would inevitably destroy the ascendency of the democratic party, and a feeble and fruitless effort was made to induce the President to lay the foundations of his administration on the rock of the Union, and cut loose from those who were seeking to destroy it. For reasons, no doubt patriotic, but to me inexplicable, the reverse of that policy was pursued. The support of the Lecompton constitution, which the country generally believed to be a fraud, was made the test of democracy; one leading democrat after another was proscribed because they would not submit to the test, and, as if to deprive Northern democrats of the last hope of successfully vindicating the rights of the South, an act of Congress was passed for the admission of Kansas into the Union at once, provided she would consent to become a slaveholding State, but postponing her admission indefinitely if she refused.

In your published letter you justly condemn the seceders from the Charleston convention, who, you think, ought to have remained, and prevented the nomination of a candidate who is obnoxious to the South. Do you not perceive, sir, that the secession was a part of the programme for breaking up the democratic [129] party? And is it not palpable that after vacating their seats at Charleston, they went to Baltimore for the mere purpose of more effectually completing the work of destruction by drawing off another detachment? I, sir, entertain no doubt that the secession was the result most desired by the disunionists; that the object of the new issue then gotten up was merely to form a pretext for secession, and its adoption was the last thing they desired or designed.

Glance a moment at a few facts: Alabama, led by an open disunionist, went to Cincinnati, in 1856, under instructions to secede unless the equal rights of all States and Territories should be conceded and incorporated into the platform of the democratic party. The concession was made and they had no opportunity to secede.

They came to Charleston under the same leader, again instructed to secede unless the convention would put into the platform a new plank, the effect of which, if adopted, would be further to disgust and alienate the Northern democracy. In this instance the sine qua non was not complied with, and the disunionists floated off on the rejected plank into an unknown sea, unfortunately carrying with them a large number of good and true Union men.

And what is this principle, the non-recognition of which has riven asunder the democratic party, and apparently threatens the dissolution of the Union? It is, that it is the right and, duty of Congress to legislate for the protection of slave property in the Territories.

Now, I take it upon me to say that a more latitudinarian and dangerous claim of power in Congress never was advanced by federalists of the Hamilton school. Look at it in a constitutional and practical light. If Congress have the right to legislate for the protection of slave property in the territories, they have a right to legislate for the protection of all other property; and, if they have a right to legislate for the protection of property, they have a right to legislate for the protection of persons. The assumption that they can legislate for the protection of slave property leads, logically and inevitably, to the conclusion that they have power to legislate for the territories in all cases whatsoever. If you can put your linger on the grant of this power in the Constitution, please put it also on its limitations, if any can be found. Upon this principle, Congress may acquire an empire outside of the organized States, over which it may exercise unlimited power, governing it as the Roman Senate did their conquered provinces. And this under a constitution, which jealously restricts the exclusive power of legislation by Congress to a few spots of land purchased, with the consent of the States, for specified objects, and grants no power of general legislation over a territory whatsoever.

To verify these positions we need only advert to the Constitution. Among the grants of power to Congress is the following, viz.:

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.

Mark the jealousy with which this power is restricted. For the protection of the Government even, it is limited to a territory not exceeding ten miles square, and it cannot be exercised over “the forts, magazines, arsenals, dockyards, and other needful buildings,” situated within the States, unless the land on which they may be located shall be first purchased with “the consent of the legislatures” of those States. Is it conceivable that the wise men who restricted the exclusive power of legislation in Congress to a territory not exceeding ten miles square, did, by any indirection, grant that power broadly enough to cover the whole continent outside of the organized States should it be annexed by purchase or conquest?

The following provision is the only one in the Constitution which has been chiefly, if not exclusively relied upon to sustain the position that Congress has any power whatsoever to legislate over the territories, viz.:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.

The word “territory,” used in this provision, obviously means land, and nothing else. The United States, at the time when the Constitution was adopted, owned an immense amount of land north of the Ohio River, and these lands Congress was authorized to “dispose of.” That the word “territory” means property, is conclusively shown by its connection with the words “and other property” --“territory and other property.” The territory spoken of, therefore, is property in lands.

“ Rules and regulations” are a grade of legislation somewhat below the dignity of laws; but admitting them in this case to have the same effect, on what are they to operate? Simply on the property of the United States, not on any other property, nor on persons, except so far as they may be connected with the public property. To this extent, and no further, is the power of Congress to legislate over a territory granted to Congress, and whenever all the lands and other property are disposed of, the “rules and regulations” become obsolete, and the power of legislation granted in this clause, is thenceforth in abeyance.

Moreover, this grant of power extends as well to property within a State as within a territory. In a State the general power of legislation is in the State Legislature; yet the power of Congress to make “rules and regulations” respecting the public property, is the same in a State as in a territory. The scope of [130] the grant can, of course, be no greater in a territory than in a State, and it necessarily follows that this clause of the Constitution confers on Congress no general power of legislation, either within States or territories.

It is not a satisfactory reply to this argument to say that such a power has, to some extent, been exercised. Is it better to acquiesce in and extend the usurpation than to put a stop to it, as in the case of the United States bank, by bringing the Government back to the constitutional test? Which is safest for the South, the constitutional principle that Congress shall not legislate for the Territories at all, or the adoption of a principle unknown to the Constitution, which, in its general application, would not only defeat the object it is advanced to promote, but would enable the free State majority to surround the slaveholding States and encircle the Union with an empire outside of the organized States, over which the majority should exercise the power of unlimited and exclusive legislation? If such an idea be chimerical, the apprehension is not chimerical that the black republicans, should they acquire the control of all branches of the Government, will use the claim now set up for Congressional legislation over one species of property in the territories, as an apology for assuming the power of general legislation, involving the power to destroy as well as to protect.

It by no means follows that the people who may occupy a territory of the United States constitute an independent community with all the attributes of sovereignty. Though the Constitution of the United States does not apply to them, they live under another constitution of powers perhaps more limited. I mean the paramount law of necessity. They are in the condition of bands of hunters or miners located in the wilderness, who may adopt such rules and regulations as may be absolutely necessary for the protection of persons and property, until Congress acknowledges their independence by admitting them in the Union on the same footing with the original States. At that moment, and not before, the powers of a limited sovereignty accrued to them, and may be exercised to protect or destroy local institutions which may have grown up while the legislative power was limited to the absolute necessities of the occasion. If it be said, that the law of necessity may be transcended and regulations adopted to destroy some kinds of property instead of protecting it, I answer that such regulations would be an assumption of power not justified by the law of necessity, analogous to usurpations of power in organized communities, remediless perhaps, but for that reason none the less unjust.

If this be not the true theory in relation to our territories, when does sovereignty therein begin? Is the first settler a sovereign? Does sovereignty accrue when there are ten, or one hundred, or one thousand, or ten thousand settlers? Where shall we draw the line and pronounce that on this side the settlers live under the law of necessity, and on that they become rightfully sovereign?

The Constitution of the United States was not made for territories, but for States, as its name implies. It has, by strict rules of construction, nothing to do with territories outside of the States united, beyond the protection and disposition of the common property therein. It seems to contemplate that the territories shall be left to themselves until they have a population adequate to the formation of a respectable community, when their independence should be acknowledged and their admission into the Union granted on the sole condition that they adopt a republican government.

But if there be a doubt as to the power of Congress to legislate for the territories, is it not safer and more consistent with democratic principles to deny the power than to assume it? Some of the original States, when admitted into the Union, had not the population of a third-rate city of the present day, and no harm would be likely to arise by leaving the territories to themselves until they have doubled the population of Delaware or Rhode Island in 1780. But would it not be incomparably better to admit them into the Union as States, with a much less population, than to leave them to be a bone of contention among demagogues and disunionists, disturbing every essential interest of the country and jeopardizing the union of the existing States?

Let us briefly consider the practical workings of the remedy for Southern wrongs, which you suggest, in case a black republican is elected to the presidency. You ask, “Is it wise, if we do not intend to submit to such consequences, to allow a black republican President to be inaugurated,” &c., and you say, “If the South should think upon this subject as I do, no black republican President should ever execute any law within her borders unless at the point of the bayonet, and over the dead bodies of her slain sons.”

I know there are men in the South who would sacrifice their lives and endanger the communities in which they live, upon a point of honor, and that such men often fire up with unwonted fierceness if reminded of the probable consequences of their own rashness. But the time has come when consequences should be looked in the face, not for purposes of defiance, but that we may consider whether the policy which would lead to them is required by Southern interests or honor.

How do you propose to prevent the inauguration of a black republican President, should such an one be unfortunately elected? Will you come to this city with an armed force, and attempt to prevent an inauguration by violence? In that event force would be met by force, and there would be instant civil war, in which the country and the world would declare the South to be the aggressor.

He would be inaugurated, here or elsewhere, [131] in spite of you. Well, suppose you then attempt to secede from the Union and resist the execution of the laws? Every lawyer in the South knows that every citizen of every State is as much bound by the laws of the United States, constitutionally enacted, as by the laws of his own State, and that it is as impossible for the State to relieve its citizens from allegiance to the United States, as it is for the latter to relieve them from allegiance to their own State. And it is the sworn duty of the President to take care that the laws of the United States shall be faithfully executed upon every citizen of every State, and as long as we have a faithful President they will be so executed, if the courts, the marshals, the army and navy, remain faithful to their respective trusts.

I know that much has been said in the South about reserved rights and nullification, secession, and not coercing a sovereign State, &c., when in fact the conventions representing the people of the several States which adopted the Constitution, made no such reservations, but bound their constituents, one and all, to allegiance to the Constitution of the United States, as firmly as similar conventions bound them to the State Constitution. And although the General Government cannot technically coerce a State, it can rightfully coerce all the citizens of a State into obedience to its constitutional laws. The pretended reserved rights of nullification and secession, therefore, are in effect nothing more nor less than an outspoken right of rebellion, when wrong and oppression become intolerable. But when the crisis comes, there are two parties who must necessarily decide, each for itself, whether circumstances justify the act — the seceders and the Government of the United States. And do you conceive that the mere election of a President entertaining obnoxious opinions, or even entertaining hostile designs against the institutions of the South, checked as he must necessarily be by a Senate and judiciary, if not a House of Representatives, without one overt act, can justify any portion of the South, even to their own consciences, in an act of rebellion?

There is one notable feature in the attitude of the South. The cry of disunion comes, not from those who suffer most from northern outrage, but from those who suffer least. It comes from South Carolina, and Georgia, and Alabama, and Mississippi, whose slave property is rendered comparatively secure by the intervention of other slaveholding States between them and the free States, and not from Delaware, and Maryland, and Virginia, and Kentucky, and Tennessee, and Missouri, which lose a hundred slaves by abolition thieves where the first-named States lose one. Why are not the States that suffer most, loudest in their cry for disunion? It is because their position enables them to see more distinctly than you do, at a distance, the fatal and instant effects of such a step. As imperfect as the protection which the Constitution and laws give to their property undoubtedly is, it is better than none. They do not think it wise to place themselves in a position to have the John Browns of the North let loose upon them, with no other restraints than the laws of war between independent nations construed by reckless fanatics. They prefer to fight the abolitionists, if fight they must, within the Union, where their adversaries are somewhat restrained by constitutional and legal obligations. No, sir; Delaware, Maryland, and Virginia do not intend to become the theatre of desolating wars between the North and the South; Kentucky, Tennessee, and Missouri do not intend that their peaceful channels of commerce shall become rivers of blood to gratify the ambition of South Carolina and Alabama, who at a remote distance from present danger cry out disunion.

I have said that the South has all along had a peaceful remedy and has it still. The union sentiment is overwhelming in all the Middle and Western States, constituting two-thirds of the republic. Pennsylvania, Ohio, Indiana, and Illinois are as little inclined to become frontier States as Maryland, Virginia, and Kentucky. Had the present Administration cut loose from the disunionists, instead of virtually ministering to their designs, and planted itself firmly on union ground, the secessions at Charleston and Baltimore would never have occurred, the “constitutional union party” would have been an impossibility, the democracy would have recovered its ascendency in the North, and an united party, embracing two-thirds of the North and of the South, would now have been marching to certain victory next November.

What ought to have been the preventive, must now be the remedy. Should Lincoln, in, secure a majority of the electors, patriotic men, North and South, without waiting for his inauguration, irrespective of party lines and throwing aside all minor considerations, must band together for the triple purpose of preventing any attempt to break up the Union, checking the republican party while in the ascendant, and expelling them from power at the next election. Let the toast of General Jackson, “The Federal Union--It must be preserved,” become the motto of the party, while strict construction of the Constitution and a jealous regard for the rights of the States shall be its distinguishing principle and unwavering practice. Let the constitutional principle be adopted of no legislation by Congress over the territories, or throw aside altogether the mischievous issues in relation to them, of no practical utility, gotten up by demagogues and disunionists, as means of accomplishing their own selfish ends. Let them inflexibly refuse to support, for any Federal or State office, any man who talks of disunion on the one hand or “irrepressible conflict between Freedom and Slavery” on the other. Throw aside all party leaders except such as “keep step to the music of the Union” and are prepared to battle for State rights under its banner. [132]

Be this your “platform;” let the South rally upon it as one man, and I would pledge all but my life, that at least one-half of the North will join you in driving from power the reckless assailants of your rights and institutions. But whether the united South come up to the rescue or not, I foresee that, in the natural progress of events, the central States from the Atlantic to the far West will band together on this ground, leaving the abolitionists of New England and the disunionists of the South to the harmless pastime of belching fire and fury at each other at a safe distance, protected by the patriotism and good sense of nine-tenths of their countrymen, against the evils they would bring on themselves.

Can you doubt the success of such a reunion? Not an advocate of disunion, under any probable circumstances, can be found among the candidates for the presidency and vice-presidency.

The supporters of Bell to a man, the supporters of Douglas to a man, and more than three-fourths of the supporters of Breckinridge, are staunch friends of the Union, and staunch adversaries of northern interference with southern institutions, When, convinced of the folly and madness of their warfare on each other, as they will be after the election, if not before, they band together in common cause, and that cause the preservation of our glorious Union and its invaluable Constitution, with their attendant blessings, will they not be irresistible?

How much more hopeful and cheering is a prospect like this than the contemplation of standing armies, grinding taxes, ruined agriculture, prostrate commerce, bloody battles, ravaged countries, and sacked cities. This continent, like the Eastern world, is destined to have its “Northern hive.” Shall its swarms be repressed by the strong hand of the States united, or are they, by a dissolution of the Union, to be let loose on our South, like the Goths and Vandals upon Southern Europe? True, their blood might, in that event, fertilize your desolated fields, but your institutions, like those of the Roman Empire, would sink to rise no more.

These are the thoughts of an old man whose only political aspirations are, that when he dies he may leave his country united, happy, and free.

With sincere regard,

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