Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-12-23

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Opinion of Attorney General Black.
We yield our editorial space to-day to the follow
ing official document from the late Attorney Gene
raj of the United States:
ATTORNEY GENERALS OFFICE,
November 20, 1860
SIR: have had the honor to receive your note of
the 18th, and l now reply to the grave questions
therein prOpOunded as fully as the time allowed me
will permit.
Within their respective spheres of action the Fede
raj Government and the Government of State are
both Of them Independent and supreme, but each is
utterly pOwerless beyond the limits assigned to il
by the Constitution. If Congress would attempt to
change the law of descents, TO make new rule of
personal succession, TO dissolve the family rea-
tlOns 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
forbid the carrying of the mails, to stop the col
lection OF duties on imports. The will of a State
whether expressed in Its constitution or laws can
not, while 1t remains in the cOnfederacy, absolve
her people from the duty of obeying the just and
constitutional requirements of the central govern
ment. Nor can ANY act Of the central government
dsplace the jurisdiction of a State because the
laws of the United States are supreme and binding
only so far as they passed in pursuance of the
Constitution. | do not say what might be effected
by mere revolutionary force. am speaking of le-
gal and constitutional right
This is the view always taken by the Judiciary,
and universally adopted that the statement of
may seem cOmmon-p place. The Supreme Court of
the United States has declared it in many cases. /
need My refer you 10 the United States against
Booth where the present Chief Justice, expressing
the nimous opinion of himself and all his breth-
ren, { 'nclated the doctrine in terms clear and
full any further demonstration Of it can scarce
ly be quired.
The lily which these principles devolve not only
upon cry officer but every CITIZEN Is that which
Mr.. ) EeTson expressed compendiously in his
first slaugural, namely: To support the State
Cover ueuts in all their rights. as the most cOnlpe-
tent a. Illustrations for their domestic concerns
the SUI ST bulwarks against AntiRepublicah tenden
cies," lmbined with d" the preservation of the
General Government. ON its whole Constitutional
vigor - the sheet-anchor Of our peace at home
and safety abroad"
To TIE Chief Executive Magistrate Of the Union
is cOn-ided the solemn duty of settling the laws
faithful y executed That he may be able 10 meet
this dizzy with power equal to his performance,
lie nOtlinates has own subOrdinates and removes
item a. ms pleasure. For the same reason the land
and naval forces under bis orders as their com
mande1-n-cHef But his power is to be used only
IN the manner prescribed by the legislative depart
ment He cannot accomplish legal purpose by
illegal meals, break the laws himself TO prevent
them being violated by others.
The act Of this Congress sometimes gives the Pre-
sldent broad discretion in the use Of the means by
which they are to be executed. and sometimes limit
his power so that he exercise only in certain
prescribed manner. Where the law directs a thing
20 be done, without saying how, that implies the
power to use such means may be necessary and
proper to accomplish the end OF the legislature But
where the mode Of performing duty is pointed out
by statute. that IS the exclusive mode, and other
can be followed. The United States have
mon law 10 fall back upon when the written law is
defective. If therefore actOf Congress declares
that a certain thing shall be done by particular
officer, It cannot be done by different officer. The
agency which the law furnishes for its own execu-
ton must be used to the exclusion of all others For
instance the revenues of the United States are to be
collected IN certain way, at certain established
ports, and by certain class of officers the Presi-
dent has no authority, under any circumstances to
collect the same revenues at other places. by differ
ent SEE Of officers. in ways provided for Even
II the machinery furnished by Congress for the col
ccuon of the duties should by any cause become so
ranged or broken up that could not be used that
w. Id not be legal reason for substituting differ
81 lnd Of machinery in Its place.
law requires that all goods imported into the
ID Estates within certain collection districts shall
entered at the proper port, and the duty thereon
shall be received by the collector appointed for. and
residing at that port There is no law which con-
fines him TO the CustOm-hoUse to any other par
ticular spot If the custom-house were burnt down
he might remove TO another building; If he lcere
iriusa from The shore he might 90 board a UeSSel
The haI1or i he keeps 'cjiH the port he IS l1iR tb
lao
A port Is place to which merchandise is import
ed, and from whence 1t is exported. tits created by
law. Il is not merely harbor or haven for il NAV
be established where there is nothing but an open
rOadsteado or on the shore OF naygable river, at
any other place where vessels may arrive and dis
charge or take in their cIrgoes. Ii compartments
the city or town which is occupied by the mariners
merchants and others who are engaged IN the bust
ness Of importing and exporting goods, navigating
the ships and furnishing them with provisions. 1t
includes also, much Of the adjacent to the
city as Is usually occupied by vessels discharging
receiving their cargoes, or lying at anchor and
waiting for that purpose.
The first section of the act of March 2 1888 au-
thorl1ed the President in certain contingency to
direct that the custom house for any collection dis
tric be established and kept IN anu secure place ari
"a some port hgrbOr Of said district either upon
land or on board any vessel.
nut TINS provision was temporary, and expired at |
the END Of the session of Congress next afterwards
Ii conferred upon the Executive right 10 remove
the site OF the custom hOusenot merely to any secure
place within the legally established port of entry
for the dlstrlct-that right ne had before-but il
wldened ms authority TO allow the removal of
II 10 any port or ha1b0r within the whole district
The enactment Of that law, and the limitation of il
70 a certain period of time now past Is not there
fore, argument against the opinion above eXnraSs
ed, that you now, ii necessary order the duties
20 be collected on board vessel inside of anv estab
lished port Of entry. Whether the first and fifth
sectiegs Of the act Of 1888, both OF which were
made temporary 6y che eighth section should be Pc,
enacted Is questiOnfoT the legislative department
Your right to take such measures as may seem to
be .sary for the protectj1 of the public proper
~ is =, clear. Ii results tsoin the pr0prietar
rights the Government as sSners Of the forts
arsenE magazines, dOck-yar Is. navy-yards. Gus
tomb, es public ships and OH sr property, which
the In ] States have bought quilt and paid for.
Beside he Government of the United States is
author a by the Constitution art. l. sec. AZ to
"cXerCs, exclusive legislation in all cases wlstso
ever, "a all places purchased by the consent Of
the Leg ature Of the State in which the shall
be for tpe erection of forts, magazines. arscnals,
dock W. Is and other needfu buildings Ii is be
leyed tat No important building has been bought
or erec i on ground where The Legislature OF the
State il which i; IS has not passed law conserving
60 the purchase Of II and cedng the exclusive uris
liCtiOu. This Government, then, j. not only the
owner O. those buildings and grounds. but by virtue
OF the supreme and paramount law, il regulates Ihe
action and Furnishes the offences Of all who are
within them If any one Of an owners rights is
palmer than another. 1t is that % keeung exclusive
possession and rc1eling intrusion. The Tjgh Of de
Jod1tg hc ptl.ic property includes also The right
81 TecdpiuT6 dfter has been JULIJcfuig tdCgi by
another. President Jefferson held the opinion
and acted upon It. that he could order a military
force 10 take possession of any land TO which the
Unlted States had title, though they had never
pied il before, though private party claimed and
held IT, and though il was not then needed nor pro-
posed to be used for any purpose connected with the
operations OF the government Tins may have been
stretch of Executive power, but the right of reta
king public property in which the Government has
been carrying on its lawful business and from which
its officers have been unawfully thrust out. cannot
well be doubted and when it was exercised at Har
pers Ferry in October, 1859, every one acknOwl-
edged the legal justice of it.
come now to the point in your letter which Is
probably o. the greatest practical importance. BY
the act Of 1897 you may employ such parts of the
land and naval forces you shall Judge necessary
FOR the purpose Of causing the laws TO be duly exc
cuted in all cases where It is lawful 10 use the mill
tia for the same purpose. BY the act of 1895 the
militia may be called forth whenever the laws of
the United states shall be opposed or the execution
thereof INSTRUCTED in any State BY combinations too
powerful TO be suppressed by the ordinary course Of
Judicial proceedings or by the power vested in the
lnarshals. This imposes upon the President the |
sole responsibility Of deciding whether an exigencv
has arisen which requires the of military force:
and IN proportion 10 the magnitude of that RESPONSE
Ohty Will be his care not TO overstep the limits of
his legal anl Just authority.
The laws referred TO in the act of 1895 are mani
festly those which are administered NV ta iu5ras
and executed by the ministerial officers 1f IN, |
courts for the punishment Of crime against the |
United States-or the protection Of rights under the
Federal Constitution and laws. and for the enforce
ment of such obligations come within the c0gniz-
ance Of the Federal Judiciary. To compel obedi- !
L. 81.