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Opinion of_Attorney-General Black / which merchandize is imported, and from whence it is ex. upon the Powers of the President.
ported. It is created by law. It is pot merely a harbor or
baven, for it may be established where there is nothing but ATTORNZY-GENERAL'S Office,
an open roadstead, or on the shore of a navigable river, or
November 20, 1860. at any other place w bere vessels may arrive and discharge Sre: I have had the honor to receive your pose of the or take in their cargoes. It comprehends the city or town 17th, and I now reply to the grave questions therein pro- which is occupied by the mariners, merchants, and others poanded as fully as ibe time allowed me will permit. who are engaged in the business of importing and export
Witbin their respective spheres of action the Federal ing goods, navigating the ships and furnishing them with Gorerument and the Government of a State are both of provisions. It includes also so much of the water adjacent them iodependent and supreme, but each is utterly power to the city as is usually occupied by vessels discharging or les beyond the limits assigned to it by the Constitution, receiving their cargoes, or lying at auchor and waiting for II Congres would attempt to change the law of descents, the purpose. to make a new rule of personal succession, or to dissolve The first section of the act of March 20, 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 iban would be a State custom-house for any collection district be established and las to prevent the recaptare of fugitives from labor, to kept in any secure place within some port or harbor of fortid the carrying of the mails, or to stop the collection such district, either npon land or on board any vessel. of daties on imports. The will of a State, whether ex. But this provision was ternporary, and expired ai 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 jast and constitutional requirements of the custom-house, not merely to any secure place within the Central Government. Nor can any act of the Central Gov- legally-established port of entry for the district—that rigbt 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 aniversally adopted that the statement of it may seem board a versel inside of any established port of ently. coramen-place. "The Supreme Court of the United States Whether the first and fifth sections of the act of 1833, both hus declared it in many cases. I ueed 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, enuneiated the doctrine in terins so clear and Your right to take such measures as may seem to be fall that any further demonstration of it can scarcely be necessary for the protection of the public property is very required.
clear. It results from the proprietary rights of the Gov. The daty which these principles devolve not only npon eru ment as owner of the forts, arsenals, magazines, dockEvery oficer, but egery citizen, is that which Mr. Jefferson yards, pavy-yards, custom-houses, public ships, and other expressed to compendiously in his first inaugnral, namely, property which the United States have bought, built, and "to support the State Governments in all their rights, as paid for. Besides, the Government of the United States the most competent administrations for their domestic is authorized by the Constitution (Art. I, Sec. 8) to "exCobeeres, and the sarest balwarks against anti-republican ercise exclusive legislation in all cases whatsoever.. over tendencies," combined with the preservation of the all places purchased by the consent of the Legislature of General Government, in its whole constitutional vigor, the State in which the same shall be for the erection of # the sheet-asehor of our peace at home and safety forts, magazines, arsenals, dock-yards, and other needful abroad."
buildings." It is believed that no important public buildTo the Chief Executive Magistrate of the Union is con- ing has been bought or erected on ground where the Legisided the solenn duty of seeing the laws faithfully exe- lature of the State, in which it is, has not a passed a law eated. That he may be able to meet this duty with a consenting to the purchase of it and ceding the exclusivo parer equal to its performance, he nominates his own jurisdiction. This Government, then, is not only the apbordinates and removes them at his pleasure. For the owner of those buildivgs and grounds, but, by virtue of same reason the land and naval forces are under his orders the supreme and paramount law, it regulates the action us their commander-in-chief. Bat his power is to be used and punishes the offences of all who are within them. If only in the manner prescribed by the legislative depart. any one of an owner's rights is plainer than another, it theat. He cannot accomplish a legal purpose by illegal is that of keeping exclusive possession and repelling inmeans, or break the laws himself to prevent them from trusion. The right of defending the public property inbeing violated by others.
cludes also the right of recapture after it has been unlaw. The acts of Congress sometimes give the President a fully taken by another. President Jefferson held the broad diseretion in the use of the means by which they are opinion, and acted upon it, that he could order a military to be execated, and sometimes limit bis power so that be force to take possession of any land to which the United tas exercise it only in a certain prescribed manner. Where States had title, though they had never occupied it before, the law directs a thing to be done, without saying how, though a private party claimed and hold it, and though that implies the power to use such means as may be neces- it was not then needed nor proposed to be used for any ary and proper to accomplish the end of the Legislature. purpose connected with the operations of the Governinent. Bat where the mode of performing a duty
is pointed out This may have been a stretch of Executive power ; but by natata, that is the exclusive mode, and no other can the right of retaking public property in which the Gov. be followed. The United States have no common law to ernment bas been carrying on its lawful business, and full back apon when the written law is defective. If, from which its officers have been unlawfully thrust oat, therefore, an act of Coogress declares that a certain thing cannot well be doubted; and when it was exercised at eball be done by a particular officer, it cannot be done by Harper's Ferry in October, 1859, every one acknowledged a different oficer. The agency which the law furnishes the legal justice of it. for its own execution must be used, to the exclusion of all others. For instance, the reyennes of the United States hly of the treatest practical importance
I come now to the point in your letter which is proba.
By the act of
within the cognizance of the Federal Judiciary. To com- | Our forefathers do not seem to have thought that war was pel obedience to these laws, the Courts have authority to calculated to form a more perfect union, establish justice, panish all who obstruct their regular administration, and insure domestic tranquility, provide for the common des the marshals and their deputies have the same powers fence, promote the general welfare, and secure the blessing as sheriffs and their deputies in the several states in exe- of liberty to ourselves and our posterity." There was uncuting the laws of the States. These are the ordinary doubtedly a strong and universal conviction among the men means provided for the execution of the laws, and the who framed and ratified the Constitution, that military whole spirit of our system is opposed to the employment force would not only be useless, but pernicious as a means of any other except in cases of extreme necessity, arisiug of holding the States together. out of great and unusual combinations agaiust 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 eninity, 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 oblisuch 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 universul that the Federal officers positive aggression upon its property or its officers, cannot themselves (including judges, district-attorneys, and mar.
be 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 peoplo 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 diffi-that 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 prorare 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
If this view of the subject be as correct as I think it is, certainly be out of place, and their use wholly illegal. If then the Union must utterly perish at the moment when they are sent to aid the courts and marshals, there must be Congress shall arm one part of the people against another courts and marshals to be aided. Without the exercise of for any purpose beyond that of merely protecting the Genthose functions, which belong exclusively to the civil ser- eral Government in the exercise of its proper constitutional vice, the laws cannot be executed in any event, no matter functions. I am, very respectfully, yours, etc., what may be the physical strength which the Government
J. S. BLACK. has at its command. Under such circumstances, to send a To the President of the United States. 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 December 4th. In the House of Repreperformance of their duty. "If the means given you to collect the revenue and execute the other laws be insufficient sentatives, Mr. BOTELER of Virginia moved for that purpose, Congress may extend and make them that so much of the President's message as more effectual to that end. If one of the States should declare her independence,
relates to the present perilous condition your action cannot depend upon the rightfulness of the of the country be referred to a special cause upon which such declaration is based. Whether the committee of one from each State, which retirement of a State from the Union be the exercise of a right reserved in the Constitution or a revolutionary move
was agreed to—yeas 145, nays 38, as follows: ment, it is certain that you have not in either case the
YEAS-Messrs. Adams of Massachusetts, Adams of authority to recognize her independence or to absolve her from her Federal obligations. Congress or the other States Ky., Adrain, Aldrich, Allen, Alley, Andersou of Ky in convention assembled must take such measures as may
Anderson, of Missouri, Avery, Babbitt, Barr, Barrett, be necessary and proper. In such an event I see no course
Bocock, Boteler, Bouligny, Branch, Brayton, Briggs, Bris for you but to go straight onward in the path you have tow, Brown, Burch, Burnett, Campbell, Carter, Clark of N. hitherto trodden, that is, execute the laws to the extent of
Y., Clark of Mo., Cobb, John Cochrane of N. York, Coldus, the defensive means placed in your hands, and act generally Conkling, Corwin, Covodo, Cox, Curtis, Davis of Md., Daris upon the assumption that the present constitutional rela- of Ind., Davis, of Miss., De Jarnette, Dolano, Duell, Dunn, tions between the States and the Federal Government con
Edmundson, Eliot, Ely, English, Etheridge, Ferry, Florence, tinue to exist until a new order of things shall be estab- Fortar, Fouke, Frank, French, Gilmer, Gooch, Graham, lished, either by law or force.
Gurley, Hale, Hall, Hardeman, Harris of Md., Harris Whether Congress has the constitutional right to make of Va., Haskin, Patton, Helmick, Hill, Hoard, Holman, war against one or more States, and require the Executive Houston, Howard of Ohio, Hughes, Humphrey, Jenkins, of the Federal Government to carry it on by means of
Junkin, Kellogg of Illinois, Kenyon, Kilgore, Killinger,
Committee of Thirty-three.
promise or patch up existing difficulties, that the people should be true to their constiand that & Convention of the people of Mis- tutional obligations; that as our differences sissippi would consider and decide the sub-had arisen mainly from the acquisitiou 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. favor of admission of new States with a pop
Mr. Clopton of Alabama, believed in the ulation equal to the ratio of representation; right of a State to secede, considered that that the Government of the United States the only remedy for present evils, and would should never own any more territory, and not hold out any delusive hope, or sanction that annexation of territory in the future any temporizing policy.
should only be by consent of the States; fr. MILES of South Carolina, said their that there should be no Congressional legisdelegation had not voted on the question lation whatever on the subject of slavery, because they conceived they had no inter- and that every Congressional District should est in it. They considered their State as in future be an Electoral District, entitled already withdrawn from the Confederacy in every four years to elect one Presidential every thing except form.
elector. Mr. Pugh of Alabama, said that State in- By Mr. Joun COCHRANE of New York. A tended following South Carolina out of the preamble and resolution to the effect that Union by the 10th of January next, and he the decision of the Supreme Court in the paid no attention to any action taken in this Dred Scott case should be received as a setbody. The Committee consisted of tlement of the questions therein discussed Mr. Corwin of Ohio.
and decided ; also, in favor of amending the Mr. Millson of Virginia.
Constitution so as to give a right to ConMr. Adams of Massachusetts.
gress to establish territorial governments; Mr. Winslow of North Carolina. providing for admission of new States with Mr. Humphrey of New York.
a population equal to the Federal ratio of Mr. Boyce of South Carolina.
representation, with or without slavery, and Mr. Campbell of Pennsylvania. prohibiting Congress and the people of the Mr. Love of Georgia.
territory from impairing the right of propMr. Ferry of Connecticut.
erty in slaves during its existence as a terMr. Davis of Maryland.
ritory. Mr. Robinson of Rhode Island.
Mr. Joan Cochrane of New York, also Mr. Whiteley of Delaware.
offered amendments to the Constitution in Mr. Tappan of New Hampshire. favor of a division of territory on the line of Mr. Stratton of New Jersey.
thirty-six degrees thirty minutes; in favor Mr. Bristow of Kentucky.
of admission of new States with or without Mr. Morrill of Vermont.
slavery ; to prohibit Congress from abolish. Mr. Nelson of Tennessee.
ing the inter-State slave-trade ; reaffirming Mr. Dunn of Indiana.
the obligation of the fugitive slave law; Mr. Taylor of Louisiana.
guaranteeing a right of transit in free States Mr. Reuben Davis of Mississippi. of persons with slaves, and declaring void Mr. Kellogg of Illinois.
all nullifying acts of State or Territorial Mr. Houston of Alabama.
Legislatures. Mr. Morse of Maine.
Mr. John COCHRANE of New York, also Mr. Phelps of Missouri.
offered a preamble and resolutions to the Mr. Rust of Arkansas. Mr. Howard of Michigan.
same effect, as regards the question of sla
very in the territories, with his proposition Mr. Hawkins of Florida.
to amend the Constitution, just cited, and Mr. Hamilton of Texas.
coupled with a resolution declaring that the Mr. Washburn of Wisconsin.
Constitution of the United States existed Mr. Curtis of Iowa.
only by, agreement of sovereign States, and Mr. Burch of California.
that any attempt of the Federal GovernMr. Windom of Minnesota. Mr. Stout of Oregon.
ment to coerce a sovereign State into the
observance of the Constitutional compact, Messrs. Hawkins and Boyce asked to be would be to levy war upon a substantial escnsed from service on the Committee, but power and precipitate
a dissolution of the the House refused.
Mr. Haskin offered as a substitute to the Propositions Submitted to the Com- above, a resolution directing the Committee mittee.
on the Judiciary to inquire and report as to
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 3d. For admission of new States, with or its jurisdiction, or from abolishing the inter- without slavery, as their Constitutions State slave-trade.
should provide. By Mr. STEVENSON of Kentucky. To so 4th. "Right of transit for persons with amend the fugitive slave law as to make it slaves through the free States. felony to resist the execution of said law 5th. To prohibit a right of represen.
By Mr. English of Indiana. That said tation in Congress to any. States passing committee be instructed to inquire into the laws to impair the obligations of the fugitive expediency of settling all matters of con- slave law until such acts shall have been troversy upon the following basis: 1. Divi- repealed. sion 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.
their respective limits. By Mr. KILGORE of Indiana. To give the right By Mr. LARRABEE of Wisconsin. Recof trial by jury, where a fugitive slave claims ommending the several States to call a to be free, with right of appeal on writ of Convention of all the States to adopt such error to either party. Monied compensation measures as the existing exigency required. in case of rescue by force, etc., and making By Mr. ANDERSON of Missouri. In fait a criminal offence to resist the enforce- vor of a joint resolution to refer the quesment of the fugitive slave law.
tions at issue between the free and slave By Mr. Holman of Indiana. Resolutions States to the Supreme Court of the United opposing the right of secession, declaring States for their opinion, and when obtained, the duty of the General Government to en- that Congress should pass all necessary force with temperate firmness and in good laws for giving effect to the opinion of said faith the provisions of the Constitution, and court. instructing the Committee of Thirty-three to By Mr. Smith of Virginia. In favor of inquire and report what legislation is needed declaring out of the Union every State to thwart any attempted nullification. which shall aim by legislation to nullify an
By Mr. N IBLACK of Indiana. That the com- act of Congress. mittee be instructed to inquire and report By Mr. SICKLES of New York. To whether Congress has power to provide by amend the Constitution so as to provide, law for a payment of money to the owner of a that whenever a Convention of delegates fugitive slave prevented by violence from re- chosen in any State by the people thereof capturing hinn.
under a recommendation of its Legislature, By Mr. John A. McCLERNAND of Illinois shall rescind its ratification of the ConstiTo same effect, and further to inquire and tution, the President shall appoint, with report as to the expediency of establishing consent of the Senate, three Commissioners a special Federal police to execute the laws to agree with such State regarding the disof the United States, and prevent opposition position of the public property therein, and thereto.
the proportion of the public deot which By Mr. NOELL of Missouri. That said such State ought to assume, which being Committee be instructed to inquire and re-approved by the President and two-thirds port as to the expediency of abolishing the of the Senate, he shall by proclamation deoffice of President of the United States, clare the assent of the United States to the and establishing in lieu thereof an Executive withdrawal of any such State from the Council of three members to be elected by Union. districts composed of contiguous States By Mr. Dunn of Indiana. A resolution as nearly as possible—each member to be in favor of a more effectual execution of armed with a veto power; and also as to the 2d Section of the 4th Article of the whether the equilibrium of free and slave Constitution to secure the personal rights States in the United States Senate can be of citizens of any State, travelling or sorestored and preserved, particularly by a journing in any other State. voluntary division of some of the slave By Mr. ADRAIN of New Jersey. A States into two or more States.
series of resolutions in substance as follows: By Mr. Hindman of Arkansas. In favor Declaring the doctrine of non-intervention of amending the Constitution as follows: of Congress in the territories; the right of
1st. An express recognition of slavery the people to be admitted as a State, either with or without slavery, as its Constitution separately given to every act of the Federal should provide; in favor of the repeal of all Government, or whether there should be a enactments of State Legislatures which con- dual Executive or a dual Senate, or the flicted with acts of Congress, or the Con- assent of a majority of the Senators from stitution, affirming the constitutionality of each section necessary to pass any law, or the fugitive slave law; inculcating a kind what other measures were needed for the and fraternal spirit among the people of the protection of the slaveholding States. different States, and deprecating any inter- By Mr. Cox of Ohio. A resolution directference with the domestic institutions of one ing the Committee of Thirty-three to inanother, and declaring that the Constitution quire what additional legislation was necescould only be preserved by the same spirit sary to enforce the provisions of the Conof compromise that had governed its for- stitution relative to rendition of fugitives, mation.
and that such inquiry should be made By Mr. MORRIS of Pennsylvania. In-) with special reference to punishing all judges, structing the Committee of Thirty-three to attorney-generals, executives, and other report is there are any personal liberty bills State ufficers who should oppose its execution. of any State in conflict with the fugitive By Mr. Hutchins of Ohio. A resolution slave law, and to inquire and report if the directing said committee to inquire what fugitive slave law is not susceptible of amend- legislation was needed to give effect to secment so as to prevent kidnapping, and ren- tion two of article four of the Constitution, der more certain the ascertainment of the granting to "the citizens of each State all true character of the fugitive.
the privileges and immunities of citizens in By Mr. STEWART of Maryland. A lengthy the several States," and to secure to all the preamble reciting to the effect that the States people the full benefit of article four of were sovereign, independent political organi- amendments to the Constitution, which zations originally, and had united from time to guarantees exemption from unreasonable time under such form of association or union searches and seizures, etc. 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 pe ple 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 in their immediate admission into the Union. structing the committee on the President's By Mr. BINGHAM of Ohio. A resolution message to inquire if any measures could be directing the committee to report such addiadopted for preserving the rights of all the tional legislation as might be needed to put States under the Union, and if not, to then down armed rebellion and protect the propinquire as to the best mode of adjusting the erty of the United States from seizure, and rights of the several States in a dissolution the citizens thereof from unlawful violence. of the Union.
By Mr. LEAKE of Virginia. A resolution OTHER PROPOSITIONS SUBMITTED TO THE HOUSE. in favor of the amendment of the Constitu- Mr. ETHERIDGE of Tennessee proposed a tion in the following particulars : Making it series of amendments to the Constitution, the duty of Congress to pass laws to protect in substance as follows: slavery where it exists; taking away all terri- That Congress shall not interfere with torial jurisdiction over the matter; guaran- slavery in the States, nor in any forts, teeing the right of transit for persons with arsenals, etc., ceded to the United States their slaves in any State; reaffirming the by a slave State, nor in the District of Colfugitive slave clause, with additional provi-umbia, without the consent of Maryland, sion for compensation in case of failure to Virginia, and the inhabitants of the District, return the fugitive.
nor without making compensation; nor with By Mr.JENKINS of Virginia. · A resolution the inter-State slave-trade. Foreign slavedirecting the Committee of Thirty-three to in- trade prohibited. In regard to slavery in quire into the best mode of amending the Territories, a provision similar to that profugitive slave law so as to adequately punish posed by Mr. Cochrane, before cited. No its infraction and render compensation when foreign territory to be acquired except on a the slave should not be restored; also as to concurrent two-thirds vote of both houses of whether the election of a President hostile to Congress or by a treaty ratified by two-thirds the slaveholding interest was not a sufficient of the members of the Senate; and an amendreason to justify the slaveholding States to re- ment in reference to rendition of fugitives quire that their concurrent sanction should be from justice.