A Compilation of the Messages and Papers of the Presidents. Volume 2, part 3: Andrew Jackson, 1st term

by Unknown

The Constitution, which his oath of office obliges him to support, declares that the Executive "shall take care that the laws be faithfully executed" and in providing that he shall from time to time give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient, imposes the additional obligation of recommending to Congress such more efficient provision for executing the laws as may from time to time be found requisite.

The same instrument confers on Congress the power not merely to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare, but "to make all laws which shall be necessary and proper for carrying into effect the foregoing powers and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof," and also to provide for calling forth the militia for executing the laws of the Union. In all cases similar to the present the duties of the Government become the measure of its powers, and whenever it fails to exercise a power necessary and proper to the discharge of the duty prescribed by the Constitution it violates the public trusts not less than it would in transcending its proper limits. To refrain, therefore, from the high and solemn duties thus enjoined, however painful the performance may be, and thereby tacitly permit the rightful authority of the Government to be contemned and its laws obstructed by a single State, would neither comport with its own safety nor the rights of the great body of the American people.

It being thus shown to be the duty of the Executive to execute the laws by all constitutional means, it remains to consider the extent of those already at his disposal and what it may be proper further to provide.

In the instructions of the Secretary of the Treasury to the collectors in South Carolina the provisions and regulations made by the act of 1799, and also the fines, penalties, and forfeitures for their enforcement, are particularly detailed and explained. It may be well apprehended, however, that these provisions may prove inadequate to meet such an open, powerful, organized opposition as is to be commenced after the 1st of February next.

Subsequently to the date of these instructions and to the passage of the ordinance, information has been received from sources entitled to be relied on that owing to the popular excitement in the State and the effect of the ordinance declaring the execution of the revenue laws unlawful a sufficient number of persons in whom confidence might be placed could not be induced to accept the office of inspector to oppose with any probability of success the force which will no doubt be used when an attempt is made to remove vessels and their cargoes from the custody of the officers of the customs, and, indeed, that it would be impracticable for the collector, with the aid of any number of inspectors whom he may be authorized to employ, to preserve the custody against such an attempt.

The removal of the custom-house from Charleston to Castle Pinckney was deemed a measure of necessary precaution, and though the authority to give that direction is not questioned, it is nevertheless apparent that a similar precaution can not be observed in regard to the ports of Georgetown and Beaufort, each of which under the present laws remains a port of entry and exposed to the obstructions meditated in that quarter.

In considering the best means of avoiding or of preventing the apprehended obstruction to the collection of the revenue, and the consequences which may ensue, it would appear to be proper and necessary to enable the officers of the customs to preserve the custody of vessels and their cargoes, which by the existing laws they are required to take, until the duties to which they are liable shall be paid or secured. The mode by which it is contemplated to deprive them of that custody is the process of replevin and that of capias in withernam, in the nature of a distress from the State tribunals organized by the ordinance.

Against the proceeding in the nature of a distress it is not perceived that the collector can interpose any resistance whatever, and against the process of replevin authorized by the law of the State he, having no common-law power, can only oppose such inspectors as he is by statute authorized and may find it practicable to employ, and these, from the information already adverted to, are shown to be wholly inadequate,

The respect which that process deserves must therefore be considered.

If the authorities of South Carolina had not obstructed the legitimate action of the courts of the United States, or if they had permitted the State tribunals to administer the law according to their oath under the Constitution and the regulations of the laws of the Union, the General Government might have been content to look to them for maintaining the custody and to encounter the other inconveniences arising out of the recent proceedings. Even in that case, however, the process of replevin from the courts of the State would be irregular and unauthorized. It has been decided by the Supreme Court of the United States that the courts of the United States have exclusive jurisdiction of all seizures made on land or water for a breach of the laws of the United States, and any intervention of a State authority which, by taking the thing seized out of the hands of the United States officer, might obstruct the exercise of this jurisdiction is unlawful; that in such case the court of the United States having cognizance of the seizure may enforce a redelivery of the thing by attachment or other summary process; that the question under such a seizure whether a forfeiture has been actually incurred belongs exclusively to the courts of the United States, and it depends on the final decree whether the seizure is to be deemed rightful or tortuous; and that not until the seizure be finally judged wrongful and without probable cause by the courts of the United States can the party proceed at common law for damages in the State courts.