Year: 1860

Opinion Of the Attorney General


The Washington Constellation publishes th'


following opinion, which has been submitted t


the President by the Attorney General:


ATTORNEY GENERALS oFFtCE,l


November 20, 1860.


SIR: have had the honor to receive you


note Of the 18th, and now reply to the grav'
Questions therein propounded as fully as tn


time allowed me will permit.


Within their respective spheres OF action tn,


Federal Government and the Government Of 9


State are both Of them independent and su
prene, but each is utterly powerless beyond the
limits assigned to it by the Constitution. /
Congress would attempt to change the law o.
descents, to make new rule ofpersonal sue
cession, or to dissolve the family relations ex
isting in any State, the act would be simply
void, but not more void than would be State
law to prevent the recapture of fugitives from
labor to forbid the carrying OF mails, or to STOP
the collection ofduties on imports. The will Of a
State, whether expressed in its Constitution or
laws cannot, while it remains in Con federacy,
absolve her people from the duty Of obeying the
just and constitutional requirements OF the Cen
trail 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. do
not say what might be effected by mere revolu.
tionary force. am speaking &C legal and con-
sttutional right.


The is the view always taken by the Judic-
iary, and so universally adopted that the state.
ment of it may seem common place. The Su
preme Court Of the United States has declared
it in many cases. l need only refer you to the
United States Us. Booth, where the present Chief
Justice, expressing the unanimous opinion OF
himself and all his brethren, enunciated the
doctrine in terms so clesr and full that any
further demonstration of it can scarcely be re.
quired.


The dnty which these principles devolve not
only upon every stficer, but every citizen, is
that which Mr.. Jefferson expressed so compend-
iously in his first inaugural, namely; "to sup
port the State governments in all their rights,
as the most competent administrations for their
domestic concerns, and the surest bulwarks o.
galnst anti republican tendencies" combined
with "the preservation of the General Govern.
ment, in its whole constitutional vigor as the
sheet anchor of our peace at home and SAFETY a.
broad.


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 power equal to it's
performance, he nominates his own subordinates
and remoyss them at his pleasure. For the
same reason the land and naval forces are un,
der 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 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 broad discretion n-the use of the
means by which they are to be executed, and
limit his power so that he can ex
crcise it only in certain prescribed manner
Where law directs thing to be done. With
out saying how, that implies the power to use
such means as may be decessary and proper to
accomplish the end OF the Legislation. But
where the mode performing duty is point
ed out by statute, that is the exclusive mode,
and no other can be followed The United
States has no common law to fall back upon
when the written law is defective. II, there
fore, an act Of Congress declares that certain
thing shall be done by particular officer 1t
cannot be done by a different officer. The a.
gency which the law furnishes for its own ex-
ecution must be used to the exclusion of all 9th
ers, For instance, the revenues of the United
at certain established ports. and by certain
class of officers; the President has no authority,
under any circumstances, to collect the same
revenues at other places, by 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 be-
come SO deranged or broken up that it would
not be used that would not be legal reason
for substituting different kind of machinery
in its place.


The law requires that all goods impoated in
to 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.
II the custom house wgs burnt down, he might
remove to another building; if he were driven
from the shore he might go on board vessel
in the harbor. II he keeps within the port he
is within the law.


A port is place to which merchandise is i'm
ported, and from whence it is exported. 1t is
created by law. 1t is not merely harbor or
or haven, for II may be established whore there
is nothing but an open road stead, or on the
shore Of navigable river, or at any other place
where vessels may arrive and discharge or take
in their cargoes. 1t comprehends the city or
town which is occupied by the mariners, mer-
chants, and others who are engaged in the bu-
siness OF importing and exporting goods, nayi-
eating the ships and furnishing them with pro.