Highly important opinion.
The U. S. Attorney General on the Crisis — A State Cannot be Coerced — Their Rights of and to the Public Property, &c., &c.
Below we publish the opinion of the Attorney General
of the United States
, the legal adviser of the Government
, upon the questions involved in cases of disputed jurisdiction and authority between the Government
of the United States
and of any State.
It will be send to contain the legal defence of the positions assumed by the President
in so much of his. Message as relates to the attempted secession of any State from the Union
, and the degree to which and the means by which the laws of the United States
can be enforced within the jurisdiction of such seceding State:
Attorney General's Office. November 20, 1860.
I have had the honor to receive your note of the 17th, and I now reply to the grave questions therein propounded as fully as the time allowed me will permit.
Within their respective spheres of action the Federal Government
and the Government
of a State are both of them independent and supreme, but each is utterly powerless beyond the limits assigned to it by the Constitution
.--If Congress would attempt to change the law of descents, to make a new rule of personal succession, or dissolve the family relations existing in any State, the act would be simply void, but not more void than would be a State law to prevent the recapture of fugitives from labor, to forbid the carrying of the mails, or to stop the collection of duties on imports.
The will of a State, whether expressed in its Constitution or laws, cannot, while it remains in the Confederacy
, absolve her people from the duty of obeying the just and constitutional requirements of the Central Government
Nor can any act of the Central Government
displace the jurisdiction of a State, because the laws of the United States
are supreme and binding only so far as they are passed in pursuance of the Constitution.
I do not say what might be effected by mere revolutinary force.
I am speaking of legal and constitutional right.
This is the view always taken by the Judiciary, and so universally adopted that the statement of it may seem common place.
The Supreme Court of the United States
has declared it in many cases.
I need only refer you to the United States
where the present Chief Justice
, expressing the unanimous opinion of himself and all his brethren, enunciated the doctrine in terms so clear and full that any further demonstration of it can scarcely be required.
The duty which these principles devolve not only upon every officer, but every citizen, is that which Mr. Jefferson
expressed so compendiously in his first inaugural, namely, ‘"to support the State Governments
in all their rights, as the most competent administrations for their domestic concerns, and the surest bulwarks against anti-republican tendencies,"’ combined with ‘"the preservation of the General Government
, in its whole constitutional vigor, as the sheet-anchor of our peace at home and safety abroad."’
To the Chief Executive Magistrate
of the Union
is confided the solemn duty of seeing the laws faithfully executed.
That he may be able to meet this duty with a power equal to its performance, he nominates his own subordinates and removes them at his pleasure.
For the same reason the land and naval forces are under his orders as their commander-in-chief.
But his power is to be used only in the manner prescribed by the legislative department.
He cannot accomplish a legal purpose by illegal means, or break the laws himself to prevent them from being violated by others.
The acts of Congress sometimes give the President
a broad discretion in the use of the means by which they are to be executed, and sometimes limit his power so that he can exercise it only in a certain prescribed manner.
Where the law directs a thing to be done, without saying how, that implies the power to use such means as may be necessary and proper to accomplish the end of the Legislature.
But where the mode of performing a duty is pointed out by statute, that is the exclusive mode, and no other can be followed.--The United States
have no common law to fill back upon when the written law is defective.
If, therefore, an act of Congress declares that a certain thing shall be done by a particular officer, it cannot be done by a different officer.
The agency which the law furnishes for its own execution must be used, to the exclusion of all others.
For instance, the revenues of the United States
are to be collected in a certain way, at certain established ports, and by a certain class of officers; the President
has no authority, under any circumstances, to collect the same revenues at other places, by a different sort of officers, or in ways not provided for. Even if the machinery furnished by Congress for the collection of the duties should by any cause become so deranged or broken up that it could not be used, that would not be a legal reason for substituting a different kind of machinery in its place.
The law requires that all goods imported into the United States
within certain collection districts shall be entered at the proper port, and the duty thereon shall be received by the Collector
appointed for and residing at that port.
But the functions of the Collector
may be exercised anywhere at or within the port.
There is no law which confines him to the custom- house, or to any other particular spot.
If the custom-house were burnt down, he might remove to another building; if he were driven from the shore, he might go on board a vessel in the harbor.
If he keeps within the port he is within the law. A port is a place to which merchandize is imported, and from whence it is exported.
It is created by law. It is not merely a harbor or haven, for it may be established where there is nothing but an open roadstead, or on the shore of a navigable river, or at any other place where vessels may arrive and discharge or take in their cargoes.
It comprehends the city or town which is occupied by the mariners, merchants and others who are engaged in the business of importing and exporting goods, navigating the ships, and furnishing them with provisions.
It includes also so much of the water adjacent to the city as is usually occupied by vessels discharging or receiving their cargoes, or lying at anchor and waiting for that purpose.
The first section of the act of March 2, 1833, authorized the President
in a certain contingency to direct that the custom-house for any collection district be established and kept in any secure place within some port or harbor of such district,
either upon land or on board any vessel.
But this provision was temporary, and expired at the end of the session of Congress next afterwards.
It conferred upon the Executive
a right to remove the site of the custom-house, not merely to any secure place within the legally established port of entry for the district — the right he had before — but it widened his authority so as to allow the removal of it to any port or harbor
within the whole district.
The enactment of that law and the limitation of it to a certain period of time now past, is not, therefore, an argument against the opinion above expressed that you can now, if necessary, order the duties to be collected on board a vessel inside of any established port of entry.
Whether the first and fifth sections of the act of 1833, both of which were made temporary by the eighth section, should be re-enacted, is a question for the legislative department.
Your right to take such measures as may seem to be necessary for the protection of the public property is very clear.
Its results from the proprietary rights of the Government
as owner of the forts, arsenals, magazines, dock-yards, navy-yards, custom-houses, public ships, and other property which the United States
have bought, built, and paid for. Besides, the Government
of the United States
is authorized by the Constitution
8) to ‘"exercise exclusive legislation in all cases whatsoever — 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, dock-yards, and other needful buildings."’ It is believed that no important public building has been bought or erected on ground where the Legislature of the State, in which it is, has not passed a law consenting to the purchase of it and ceding the exclusive jurisdiction.
This Government, then, is not only the owner of those buildings and grounds, but, by virtue of the supreme and paramount law, it regulates the action and punishes the offences of all who are within them.
If any one of an owner's rights is plainer than another, it is that of keeping exclusive possession and repelling intrusion.--The right of defending the public property includes also the right of recapture after it has been unlawfully taken by another.
held the opinion, and acted upon it, that he could order a military force to take possession of any land to which the United States
had title, though they had never occupied it before, though a private party claimed and held it, and though it was not then needed nor proposed to be used for any purpose connected with the operations of the Government
This may have been a stretch of the Executive
power; but the right of retaking public property in which the Government
has been carrying on its lawful business, and from which its officers have been unlawfully thrust out, cannot well be doubted; and when it was exercised at Harper's Ferry
in October, 1859, every one acknowledged the legal justice of it.
I come now to the point in your letter which is probably of the greatest practical importance.
By the act of 1807 you may employ such parts of the land and naval forces as you shall 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.
By the act of 1795 the militia may be called forth ‘"whenever the laws of the United States
shall be opposed or the execution thereof obstructed in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals."’ This imposes upon the President
the sole responsibility of deciding whether the exigency has arisen which requires the use of military force; and in proportion to the magnitude of that responsibility will be his care not to overstep the limits of his legal and just authority.
The laws referred to in the act of 1795 are manifestly those which are administered by the judges and executed by the ministerial officers of the courts for the punishment of crime against the United States
, for the protection of rights claimed under the Federal Constitution
and laws, and for the enforcement of such obligations as come within the cognizance of the Federal Judiciary
To compel obedience to these laws the courts have authority to punish all who obstruct their regular administration, and the marshals and their deputies have the same powers as sheriffs and their deputies in the several States in executing the laws of the States.
These are the ordinary means provided for the execution of the laws, and the whole spirit of our system is opposed to the employment of any other except in cases of extreme necessity, arising out of great and unusual combinations against them.
Their agency must continue to be used until their incapacity to cope with the power opposed to them shall be plainly demonstrated.
It is only upon clear evidence to that effect that a military force can be called into the field.
Even then its operations must be purely defensive.
It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof.--It can do no more than what might and ought to be done by a civil posse, if a civil posse could be raised large enough to meet the same opposition.
On such occasions especially, the military power must be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all.
But what if the feeling in any State against the United States
should become so universal that the Federal
officers themselves (including judges, district attorneys, and marshals,) would be reached by the same influences and resign their places?
Of course the first step would be to appoint others in their Stead, if others could be got to serve.
But, in such an event, it is more than probable that great difficulty would be found in filling the offices.--We can easily conceive how it might become altogether impossible.
We are, therefore, obliged to consider what can be done in case we have no courts to issue judicial process, and no ministerial officers to execute it. In that event troops would certainly be out of place, and their use wholly illegal.
If they are sent to aid the courts and marshals, there must be courts and marshals to be aided.--Without the exercise of those functions, which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government
has at its command.
Under such circumstances, to send a military force into any State with orders to act against the people would be simply making war upon them.
The existing laws put and keep the Federal Government
strictly on the defensive.
You can use force only to repel an assault on the public property, and aid the courts in the performance of their duty.
If the means given you to collect the revenue and execute the other laws be insufficient for that purpose, Congress may extend and make them more effectual to that end.
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 a 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.
Congress or the other States in convention assembled must take such measures as may be necessary and proper.
In such an event I see no course for you but to go straight on ward in the path you have hitherto trodden — that is, execute 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 order of things shall be established, either by law or force.
Whether Congress has the constitutional right to make war against one or more States, and require the Executive
of the Federal Government
to carry it on by means of force to be drawn from the other States, is a question for Congress itself to consider.
It must be admitted that no such power is expressly given; nor are there any words in the Constitution
which imply it. Among the powers enumerated in article 1, sec.
8, is that ‘"to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water." ’ This certainly means nothing more than the power to commence and carry on hostilities against the foreign enemies of the nation.
Another clause in the same section gives Congress the power ‘"to provide for calling forth the militia,"’ and to use them within the limits of the State
.--But this power is so restricted by the words which immediately follow, that it can be exercised only for one of the following purposes: 1.
To execute the laws of the Union
; that is, to aid the Federal
officers in the performance of their regular duties.
2. To suppress insurrection against the States; but this is confined by article 4, section 4, to cases in which the State
herself shall apply for assistance against her own people.
3. To repel the invasion of a State by enemies who come from abroad to assail her in her own territory.
All these provisions are made to protect the States, not to authorize an attack by one part of the country upon another; to preserve their peace, and not to plunge them into civil war. Our forefathers do not seem to have thought that war was calculated ‘"to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."’S There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution
that military force would not only be useless but pernicious as a means of holding the States together.
If it be true that war cannot be declared, nor a system of general hostilities carried on by the Central Government
against a State, then it seems to follow that an attempt to do so would be ipso facto
an expulsion of such State from the Union
Being treated as an allen and an enemy, she would be compelled to act accordingly.
And if Congress shall break up the present Union by unconstitutionally putting strife and enmity and armed hostility between different sections of the country, instead of the "domestic tranquility" which the Constitution
was meant to insure, will not all the States be absolved from their Federal obligations?
Is any portion of the people bound to contribute their money or their blood to carry on a contest like that?
The right of the General Government
to preserve itself in its whole constitutional vigor, by repelling a direct and positive aggression upon its property or its officers, cannot be denied.
But this is a totally different thing from an offensive war to punish the people for the political misdeeds of their State Government, or to prevent a threatened violation of the Constitution
, or to enforce an acknowledgment that the Government
of the United States
The States are colleagues of one another, and if some of them shall conquer the rest and hold them as subjugated provinces, it would totally destroy the whole theory upon which they are now connected.
If this view of the subject be as correct as I think it is, then the Union
must utterly perish at the moment when Congress shall arm one part of the people against another for any purpose beyond that of merely protecting the General Government
in the exercise of its proper constitutional functions.