698 



UNITED STATES. 



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 mil- 

 itary 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 exe- 

 cuted 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 Consti- 

 tution and laws, and for the enforcement of such obli- 

 gations 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 dep- 

 uties have the same powers as sheriff's and their depu- 

 ties 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 ex- 

 cept 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 de- 

 monstrated. 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 di- 

 rectly 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 Unit- 

 ed States should become so universal that the Federal 

 officers themselves (including judges, district attor- 

 neys, and marshals) would be reached by the same in- 

 fluences 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 difficulties would be found in 

 filliug 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 minis- 

 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 mar- 

 shals, there must be courts and marshals to be aided. 

 Without the exercise of those functions, which be- 

 long 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 mil- 

 itary 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 Govern- 

 ment strict! j r 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 ex- 

 tend 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 exer- 

 cise of a right reserved in the Constitution or a revolu- 

 tionary 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. Con- 

 gress, 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 relation* 

 between the States and the Federal Government con- 

 tinue to exist, until a new order of things shall be es- 

 tablished, either by law or force. 



On the right of Congress to make war upon 

 a State, and require the President to carry it on, 

 the views of the Attorney-General were also 

 given. Subsequent events attach interest to 

 these views, which they would otherwise hardly 

 possess. They were doubtless the opinions 

 which controlled the action of the Administra- 

 tion until the close of its term. 



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 pro- 

 vide 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 pur- 

 poses : 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., sec. 4, 

 to cases in which the State herself shall apply for as- 

 sistance against her own people. 3. To repel the in- 

 vasion 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 at- 

 tack by one part of the country upon another ; to pre- 

 serve 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 tranquillity, 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 uni- 

 versal conviction among the men who framed and rat- 

 ified 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 sys- 

 tem 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 

 alien and an enemy, she would be compelled to act ac- 

 cordingly. And if Congress shall break up the pres- 

 ent Union by unconstitutionally putting strife and en 

 mity and armed hostility between different sections of 

 the country, instead of the " domestic tranquillity" 

 which the Constitution was meant to insure, will not 

 all the States be absolved from their Federal obliga- 

 tions ? Is any portion of the people bound to contri- 

 bute their money or their blood to carry on a contest 

 like that? 



The right of the General Government to preserve it- 

 self in its whole constitutional vigor by repelling a di- 

 rect and positive aggression upon its property or its 

 officers cannot be denied. But this is a totally differ- 

 ent 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 is supreme. The States are col- 

 leagues of one another, and if some of them shall con- 

 quer the rest and hold them as subjugated provinces, 

 it would totally destroy the whole theory upon which 

 they are now connected. 



