Opinion of Attorney-General Black | which merchandize is imported, and from whence it is exupon the Powers of the President.

ATTORNEY-GENERAL'S OFFICE,

November 20, 1860.

ported. 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 exportprovisions. 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 the purpose.

SIE: 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 perinit. Within their respective spheres of action the Federaling goods, navigating the ships and furnishing them with Government and the Government of a State are both of them independent and supreme, but each is utterly power less 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 to dissolve The first section of the act of March 2d, 1833, authorized the family relations existing in any State, the act would the President in a certain contingency to direct that the be simply void, but not more void than would be a State custom-house for any collection district be established and law to prevent the recapture of fugitives from labor, to kept in any secure place within some port or harbor of forbid the carrying of the mails, or to stop the collection such district, either upon land or on board any vessel. of duties on imports. The will of a State, whether ex- But this provision was temporary, and expired at the end pressed in its constitution or laws, cannot, while it remains of the session of Congress next afterwards. It conferred in the Confederacy, absolve her people from the duty of upon the Executive a right to remove the site of the obeying the just and constitutional requirements of the custom-house, not merely to any secure place within the Central Government. Nor cau any act of the Central Gov-legally-established port of entry for the district-that right erament displace the jurisdiction of a State, because the he had before-but it widened his authority so as to allow laws of the United States are supreme and binding only so the removal of it to any port or harbor within the whole far as they are passed in pursuance of the Constitution. district. The enactment of that law and the limitation of I do not say what might be effected by mere revolution-it to a certain period of time now past, is not therefore, an ary force. I am speaking of legal and constitutional right. argument against the opinion above expressed that you This is the view always taken by the Judiciary, and so can now if necessary, order the duties to be collected on universally adopted that the statement of it may seem board a vessel inside of any established port of entry. common-place. The Supreme Court of the United States Whether the first and fifth sections of the act of 1833, both has declared it in many cases. I need only refer you to the of which were made temporary by the eighth section, United States vs. Booth where the present Chief Justice, should be re-enacted, is a question for the legislative expressing the unanimous opinion of himself and all his department. brethren, enunciated the doctrine in terins so clear and fail 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 confled the solemn duty of seeing the laws faithfully execated. That he may be able to meet this duty with a power equal to its performance, he nominates his own sabordinates 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 departmeat. 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 performning 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 fall 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 perts, and by a certain class of officers; the President has Do sathority, 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 sub-titnting 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 any where 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

Your right to take such measures as may seem to be necessary for the protection of the public property is very clear. It results from the proprietary rights of the Government as owner of the forts, arsenals, magazines, dockyards, 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 (Art. I, Sec. 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 a 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. President Jefferson 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 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

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." 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.

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. If it be true that war cannot be declared, nor a system Their agency must continue to be used until their in- of general hostilities carried on by the central government capacity to cope with the power opposed to them shall against a State, then it seems to follow that an attempt to be plainly demonstrated. It is only upon clear evidence do so would be ipso facto an expulsion of such State from to that effect that a military force can be called into the the Union. Being treated as an alien and an enemy, she field. Even then its operations must be purely defensive. would be compelled to act accordingly. And if Congress It can suppress only such combinations as are found shall break up the present Union by unconstitutionally directly opposing the laws and obstructing the execution putting strife and enmity, and armed hostility, between thereof. It can do no more than what might and ought different sections of the country, instead of the "domestic to be done by a civil posse, if a civil posse could be tranquillity" which the Constitution was meant to insure, raised large enough to meet the same opposition. On will not all the States be absolved from their Federal obli such occasions especially the military power must be gations? Is any portion of the people bound to contribute kept in strict subordination to the civil authority, since it their money or their blood to carry on a contest like that? is only in aid of the latter that the former can act at all. The right of the General Government to preserve itself But what if the feeling in any State against the United in its whole constitutional vigor by repelling a direct and States should become so universal that the Federal officers positive aggression upon its property or its officers, cannot themselves (including judges, district-attorneys, and marbe denied. But this is a totally different thing from an shals) would be reached by the same influences, and resign offensive war to punish the people for the political misdeeds their places? Of course the first step would be to appoint of their State governments, or to prevent a threatened vioothers in their stead, if others could be got to serve. But, lation of the Constitution, or to enforce an acknowledgment in such an event, it is more than probable that great diffithat the government of the United States is supreme. The culty would be found in filling the offices. We can easily States are colleagues of one another, and if some of them conceive how it might become altogether impossible. We shall conquer the rest and hold them as subjugated provare therefore obliged to consider what can be done in case inces, it would totally destroy the whole theory upon which we have no courts to issue judicial process, and no minis- they are now connected. terial 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 col

fect 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 onward 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 I. section 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 insurrections against the States; but this is confined by article IV. section 4, to cases in which the State herself shall apply for assistance against her own people. 8. 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.

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. I am, very respectfully, yours, etc., J. S. BLACK.

To the President of the United States.

Committee of Thirty-three. December 4th. In the House of Representatives, Mr. BOTELER of Virginia moved that so much of the President's message as relates to the present perilous condition of the country be referred to a special committee of one from each State, which was agreed to-yeas 145, nays 38, as follows:

YEAS-Messrs. Adams of Massachusetts, Adams of Ky., Adrain, Aldrich, Allen, Alley, Anderson of Ky., Anderson, of Missouri, Avery, Babbitt, Barr, Barrett, Bocock, Boteler, Bouligny, Branch, Brayton, Briggs, Bristow, Brown, Burch, Burnett, Campbell, Carter, Clark of N. Y., Clark of Mo., Cobb, John Cochrane of N. York, Colfax, Conkling, Corwin, Covodo, Cox, Curtis, Davis of Md., Davis of Ind., Davis, of Miss., De Jarnette, Delano, Duell, Dunn, Edmundson, Eliot, Ely, English, Etheridge, Ferry, Florence, Foster, Fouke, Frank, French, Gilmer, Gooch, Graham, Gurley, Hale, Hall, Hardeman, Harris of Md., Harris of Va., Huskin, Hatton, Helmick, Hill, Hoard, Holman, Houston, Howard of Ohio, Hughes, Humphrey, Jenkins, Junkin, Kellogg of Illinois, Kenyon, Kilgore, Killinger, Kunkel, Larrabee, Leach of N. Carolina, Leake, Logan, Longnecker, Love, Maclay, Martin of Ohio, Martin, of Va., Maynard, McClernard, McKenty, McPherson, Millson, Moore of Ky., Moorhead, Morrill, Morris of Penn., Morris of Ill.,Nelson, Niblack. Nixon, Noell, Palmer, Pendleton, Pettit, Pey ton, Phelps, Porter, Pryor, Quarles, Reynolds, Rice, Rigs, Robinson of R. I., Robinson of Illinois, Royce, Rust, Sickles, Smith of Va., Smith of N. C., Somes, Spaulding, Spinner, Stevenson, Stewart of Md., Stewart of Pa., Stokes, Stout, Stratton, Thayer, Theaker, Thomas, Train, Trimble, Vallandig ham, Vance, Vandever, Verree, Walton, Washburn of Me, Webster, Whiteley, Windom, Winslow, Wood, Woodruff-145.

NAYS-Messrs. Ashley, Beale, Bingham, Blair, Blake, Buffinton, Burlingame, Burnham, Carey, Case, Edgerton, Fenton, Grow, Hickman, Howard of Mich., Hutchins, Irvine, Kellogg of Mich., Leach of Mich., Lee, Loomis, Love joy, McKean, McKnight, Morse, Perry, Potter, Pottle, Sedgwick, Sherman, Stanton, Stevens, Tappan, Tompkins, Wade, Washburn of Wis., Washburne of Ill., Wells-38.

During the vote, Mr. SINGLETON of Mis sissippi, said he declined to vote because he had not been sent here to make any com

promise or patch up existing difficulties, that the people should be true to their constiand that a Convention of the people of Mis-tutional obligations; that as our differences sissippi would consider and decide the sub- had arisen mainly from the acquisition of ject. new territory, no more territory ought Mr. HAWKINS of Florida, said the day of ever to be acquired; affirming the right of compromise had passed, and that he was self-government in the Territories as indeopposed, and he believed his State was op-pendent of Congress or the President; in posed, to all and every compromise.

By Mr. THAYER of Massachusetts. A series of resolutions to the effect that the representatives of the people should devote themselves to the cause of the country, in the spirit of the fathers of the Republic; By Mr. MALLORY of Kentucky. Instruct

ing the Committee of Thirty-three in favor in the States where it exists, and prohibition of a division of territory on line of thirty-of right of Congress to interfere therewith six degrees thirty minutes, and admis-or with the inter-State slave-trade.

sion of new States with a population equal 2d. Expressly requiring Congress to proto the Federal ratio of representation, with tect slavery in the territories, and in all or without slavery, and to prohibit Congress places under its jurisdiction. from abolishing slavery in any places within its jurisdiction, or from abolishing the interState slave-trade.

By Mr. STEVENSON of Kentucky. To so amend the fugitive slave law as to make it felony to resist the execution of said law

3d. For admission of new States, with or without slavery, as their Constitutions should provide.

4th. Right of transit for persons with slaves through the free States.

5th. To prohibit a right of represen tation in Congress to any States passing laws to impair the obligations of the fugitive slave law until such acts shall have been repealed.

By Mr. ENGLISH of Indiana. That said committee be instructed to inquire into the expediency of settling all matters of controversy upon the following basis: 1. Division of Territory between the free and slave 6th. Giving the slave States a negative States, with provision for admission of new upon all acts of Congress relating to slavery. States with a population equal to the Fed- 7th. Making the above amendments, and eral ratio of representation. 2. Prohibiting all provisions of the Constitution relative Congress from impairing the right of prop- to slavery unamendable.

erty in slaves. 3. Making the city, county, or 8th. Granting to the several States autownship liable in double the value of fugi-thority to appoint all Federal officers within tive slaves forcibly rescued, etc.

By Mr. KILGORE of Indiana. To give the right of trial by jury, where a fugitive slave claims to be free, with right of appeal on writ of error to either party. Monied compensation in case of rescue by force, etc., and making it a criminal offence to resist the enforcement of the fugitive slave law.

By Mr. HOLMAN of Indiana. Resolutions opposing the right of secession, declaring the duty of the General Government to enforce with temperate firmness and in good faith the provisions of the Constitution, and instructing the Committee of Thirty-three to inquire and report what legislation is needed to thwart any attempted nullification.

By Mr. NIBLACK of Indiana. That the committee be instructed to inquire and report whether Congress has power to provide by law for a payment of money to the owner of a fugitive slave prevented by violence from recapturing him.

By Mr. JOHN A. McCLERNAND of Illinois To same effect, and further to inquire and report as to the expediency of establishing a special Federal police to execute the laws of the United States, and prevent opposition thereto.

By Mr. NOELL of Missouri. That said Committee be instructed to inquire and report as to the expediency of abolishing the office of President of the United States, and establishing in lieu thereof an Executive Council of three members to be elected by districts composed of contiguous States as nearly as possible-each member to be armed with a veto power; and also as to whether the equilibrium of free and slave States in the United States Senate can be restored and preserved, particularly by a voluntary division of some of the slave States into two or more States.

By Mr. HINDMAN of Arkansas. In favor of amending the Constitution as follows:

1st. An express recognition of slavery

their respective limits.

By Mr. LARRABEE of Wisconsin. Recommending the several States to call a Convention of all the States to adopt such measures as the existing exigency required.

By Mr. ANDERSON of Missouri. In favor of a joint resolution to refer the questions at issue between the free and slave States to the Supreme Court of the United States for their opinion, and when obtained, that Congress should pass all necessary laws for giving effect to the opinion of said court.

By Mr. SMITH of Virginia. In favor of declaring out of the Union every State which shall aim by legislation to nullify an act of Congress.

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By Mr. SICKLES of New York. amend the Constitution so as to provide, that whenever a Convention of delegates chosen in any State by the people thereof under a recommendation of its Legislature, shall rescind its ratification of the Constitution, the President shall appoint, with consent of the Senate, three Commissioners to agree with such State regarding the disposition of the public property therein, and the proportion of the public debt which such State ought to assume, which being approved by the President and two-thirds of the Senate, he shall by proclamation declare the assent of the United States to the withdrawal of any such State from the Union.

By Mr. DUNN of Indiana. A resolution in favor of a more effectual execution of the 2d Section of the 4th Article of the Constitution to secure the personal rights of citizens of any State, travelling or sojourning in any other State.

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By Mr. ADRAIN of New Jersey. series of resolutions in substance as follows: Declaring the doctrine of non-intervention of Congress in the territories; the right of the people to be admitted as a State, either

with or without slavery, as its Constitution should provide; in favor of the repeal of all enactments of State Legislatures which conflicted with acts of Congress, or the Censtitution, affirming the constitutionality of the fugitive slave law; inculcating a kind and fraternal spirit among the people of the different States, and deprecating any interference with the domestic institutions of one another, and declaring that the Constitution could only be preserved by the same spirit of compromise that had governed its formation.

By Mr. MORRIS of Pennsylvania. Instructing the Committee of Thirty-three to report if there are any personal liberty bills of any State in conflict with the fugitive slave law, and to inquire and report if the fugitive slave law is not susceptible of amendment so as to prevent kidnapping, and render more certain the ascertainment of the true character of the fugitive.

separately given to every act of the Federal Government, or whether there should be a dual Executive or a dual Senate, or the assent of a majority of the Senators from each section necessary to pass any law, or what other measures were needed for the protection of the slaveholding States.

By Mr. Cox of Ohio. A resolution directing the Committee of Thirty-three to inquire what additional legislation was necessary to enforce the provisions of the Constitution relative to rendition of fugitives, and that such inquiry should be made with special reference to punishing all judges, attorney-generals, executives, and other State officers who should oppose its execution. By Mr. HUTCHINS of Ohio. A resolution directing said committee to inquire what legislation was needed to give effect to section two of article four of the Constitution, granting to "the citizens of each State all the privileges and immunities of citizens in the several States," and to secure to all the people the full benefit of article four of amendments to the Constitution, which guarantees exemption from unreasonable searches and seizures, etc.

By Mr. STEWART of Maryland. A lengthy preamble reciting to the effect that the States were sovereign, independent political organizations originally, and had united from time to time under such form of association or union as was deemed expedient-which form of as- By Mr. SHERMAN of Ohio. A series of sociation had been from time to time changed resolutions to the effect that the only remedy peaceably as circumstances required; that for existing dissensions was to be found in a it was the deliberate opinion of many of the faithful observance of all the compromises of people that our present form of government, the Constitution and the laws made in purfrom causes either resulting from or in vio- suance thereof; instructing the Committee of lation of the Constitution, was inadequate Thirty-three to inquire whether any State or for the purposes for which it was created; the people thereof have failed of their duty that certain States were threatening to with- in this regard, and if so what remedy should draw their allegiance; and that we had be made therefor, and directing said comreached a crisis in our history which required mittee to divide the remaining Territories an alteration of the present form of govern-into States of convenient size with a view to ment; and he followed with a resolution instructing the committee on the President's message to inquire if any measures could be adopted for preserving the rights of all the States under the Union, and if not, to then inquire as to the best mode of adjusting the rights of the several States in a dissolution of the Union.

By Mr. LEAKE of Virginia. A resolution in favor of the amendment of the Constitution in the following particulars: Making it the duty of Congress to pass laws to protect slavery where it exists; taking away all territorial jurisdiction over the matter; guaranteeing the right of transit for persons with their slaves in any State, reaffirming the fugitive slave clause, with additional provision for compensation in case of failure to return the fugitive.

By Mr. JENKINS of Virginia. A resolution directing the Committee of Thirty-three to inquire into the best mode of amending the fugitive slave law so as to adequately punish its infraction and render compensation when the slave should not be restored; also as to whether the election of a President hostile to the slaveholding interest was not a sufficient reason to justify the slaveholding States to require that their concurrent sanction should be

their immediate admission into the Union.

By Mr. BINGHAM of Ohio. A resolution directing the committee to report such additional legislation as might be needed to put down armed rebellion and protect the property of the United States from seizure, and the citizens thereof from unlawful violence. OTHER PROPOSITIONS SUBMITTED TO The house.

Mr. ETHERIDGE of Tennessee proposed a series of amendments to the Constitution, in substance as follows:

That Congress shall not interfere with slavery in the States, nor in any forts, arsenals, etc., ceded to the United States by a slave State, nor in the District of Columbia, without the consent of Maryland, Virginia, and the inhabitants of the District, nor without making compensation; nor with the inter-State slave-trade. Foreign slavetrade prohibited. In regard to slavery in Territories, a provision similar to that proposed by Mr. Cochrane, before cited. No foreign territory to be acquired except on a concurrent two-thirds vote of both houses of Congress or by a treaty ratified by two-thirds of the members of the Senate; and an amendment in reference to rendition of fugitives from justice.