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 confided the solemn duty of seeing the laws faithfully executed. That he may be able to meet this duty with a power equal to its performance, he nominates his own subordinates, 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 department. 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 performing 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 ports, and by a certain class of officers; the President has no authority, 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 substituting 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 anywhere 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 which merchandise is imported, and from whence it is exported. 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 exporting goods, navigating the ships and furnishing them with provisions. 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 that purpose.
The first section of the act of March 2, 1833, authorized the President in a certain contingency to direct that the custom-house for any collection district be established and kept in any secure place within some port or harbor of such district, either upon land or on board any vessel. But this provision was temporary, and expired at the end of the session of Congress next afterwards. It conferred upon the Executive a right to remove the site of a custom-house not merely to any secure place within the legally established port of entry for the district—that right he had before—but it widened his authority so as to allow the removal of it to any port or harbor within the whole district. The enactment of that law, and the limitation of it to a certain period of time now passed, is not, therefore, an argument against the opinion above expressed, that you can now, if necessary, order the duties to be collected on board a vessel inside of any established port of entry. Whether the first and fifth sections of the act of 1833, both of which were made temporary by the eighth section, should be reënacted, is a question for the legislative department.
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, dock-yards, 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. 1, 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 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, everyone 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 may 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 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. Their agency must continue to be used until their incapacity to cope with the power opposed to them shall be plainly demonstrated. 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 directly 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 United States should become so universal that the Federal officers themselves (including judges, district attorneys and marshals) would be reached by the same influences, 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 difficulty would be found in filling 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 ministerial 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.