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 cannot 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 practable 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 tribuuals 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' officers, 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 re-delivery 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.

But, by making it "unlawful for any of the constituted authorities, whether of the United States or of the State, to enforce the laws for the payment of duties, and declaring that all judicial proceedings which shall be hereafter had in affirmance of the contracts made with purpose to secure the duties imposed by the said acts, are, and shall be held utterly null und void," she has, in effect, abrogated the judicial tribunals within her limits in this respect; has virtually denied the United States access to the courts established by their own laws; and declared it unlawful for the judges to discharge those duties which they are sworn to perform. In lieu of these, she has substituted those State tribunals already adverted to, the judges whereof are not merely forbidden to allow an appeal or permit a copy of their record, but are previously sworn to disregard the laws of the Union, and enforce those only of South Carolina; and, thus deprived of the function essential to the judicial character, of inquiring into the validity of the law and the right of the matter, become merely ministerial instruments in aid of the concerted obstruction of the laws of the Union.

Neither the process nor authority of these tribunals, thus constituted, can be respected, consistently with the supremacy of the laws or the rights and security of the

citizen. If they be submitted to, the protection due from the Government to its officers and citizens is withheld, and there is, at once, an end, not only to the laws, but to the Union itself.

Against such a force as the sheriff may, and which, by the replevin law of South Carolina, it is his duty to exercise, it cannot be expected that a collector can retain his custody with the aid of the inspectors. In such case, it is true, it would be competent to institute suits in the United States' courts against those engaged in the unlawful proceeding; or the property might be seized for a violation of the revenue laws, and, being libelled in the proper courts, an order might be made for its re-delivery, which would be committed to the marshal for execution. But, in that case, the 4th section of the act, in broad and unqualified terms, makes it the duty of the sheriff "to prevent such recapture or seizure, or to re-deliver the goods, as the case may be," "even under any process, order, or decrees, or other pretext, contrary to the true intent and meaning of the ordinance aforesaid." It is thus made the duty of the sheriff to oppose the process of the courts of the United States, and, for that purpose, if need be, to employ the whole power of the county. And the act expressly reserves to him all power, which, independently of its provisions, he could have used. In this reservation, it obviously contemplates a resort to other means than those particularly mentioned.

It is not to be disguised that the power which it is thus enjoined upon the sheriff to employ, is nothing less than the posse comitatis, in all the rigor of the ancient common law. This power, though it may be used against unlawful resistance to judicial process, is, in its character, forcible, and analogous to that conferred upon the marshals by the act of 1795. It is, in fact, the embodying of the whole mass of the population, under the command of a single individual, to accomplish, by their forcible aid, what could not be effected peaceably and by the ordinary means. It may properly be said to be a relic of those ages in which the laws could be defended rather by physical than moral force, and, in its origin, was conferred upon the sheriffs of England to enable them to de

fend their country against any of the king's enemies when they came into the land, as well as for the purpose of executing process. In early, and less civilized times, it was intended to include "the aid and attendance of all knights and others who were bound to have harness." It includes the right of going with arms and military equipment, and embraces larger classes and greater masses of population than can be compelled by the laws of most of the States to perform militia duty. If the principles of the common law are recognized in South Carolina, (and from this act it would seem they are,) the power of summoning the posse comitatis will compel, under the penalty of fine and imprisonment, every man over the age of fifteen, and able to travel, to turn out, at the call of the sheriff, and with such weapons as may be necessary; and it may justify beating, and even killing, such as may resist. The use of the posse comitatis is, therefore, a direct application of force, and cannot be otherwise regarded than as the employment of the whole militia force of the county, and in an equally efficient form, under a different name. No proceeding which resorts to this power, to the extent contemplated by the act, can be properly denominated peaceable.

The act of South Carolina, however, does not rely altogether upon this forcible remedy. For even attempting to resist or disobey-though by the aid only of the ordinary officers of the customs-the process of replevin, the collector and all concerned are subject to a further proceeding in the nature of a distress of their personal effects; and are, moreover, made guilty of a misdemeanor, and liable to be punished by a fine of not less than one thousand, nor more than five thousand dollars, and to imprisonment not exceeding two years, and not less than six months; and for even attempting to execute the order of the court for retaking the property, the marshal, and all assisting, would be guilty of a misdemeanor, and liable to a fine of not less than three thousand dollars, nor more than ten thousand, and to imprisonment not exceeding two years, nor less than one, and, in case the goods should be retaken under such process, it is made the absolute duty of the sheriff to retake them.

It is not to be supposed that, in the face of these penalties, aided by the powerful force of the county, which would doubtless be brought to sustain the State officers, either that the collector would retain the custody in the first instance, or that the marshal could summon sufficient aid to retake the property pursuant to the order or other process of the court.

It is, moreover, obvious that in this conflict between the powers of the officers of the United States and of the State, (unless the latter be passively submitted to,) the destruction to which the property of the officers of the customs would be exposed, the commission of actual violence, and the loss of lives, would be scarcely avoidable.

Under these circumstances, and the provisions of the acts of South Carolina, the execution of the laws is rendered impracticable even through the ordinary judicial tribunals of the United States. There would certainly be fewer difficulties, and less opportunity of actual collision between the officers of the United States and of the State, and the collection of the revenue would be more effectually secured-if indeed it can be done in any other way -by placing the custom-house beyond the immediate power of the county.

For this purpose, it might be proper to provide that whenever, by any unlawful combination or obstruction in any State, or in any port, it should become impracticable faithfully to collect the duties, the President of the United States should be authorized to alter and abolish such of the districts and ports of entry as should be necessary, and to establish the custom-house at some secure place within some port or harbor of such State; and, in such cases, it should be the duty of the collector to reside at such place, and to detain all vessels and cargoes until the duties imposed by law should be properly secured or paid in cash, deducting interest; that, in such cases, it should be unlawful to take the vessel and cargo from the custody of the proper officer of the customs, unless by process from the ordinary judicial tribunals of the United States; and that, in case of an attempt otherwise to take the property by a force too great to be overcome by the officers of the customs, it should be lawful to protect the posses