| Confederate States of America |
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Department of Justice |
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Richmond, July 31st 1862 |
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Hon. S. R. Mallory |
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Sec. of the Navy |
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Sir, |
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I have received your letter of this date enclosing the
instructions which you propose to give to Col. T. J. Minor, in relation
to a purchase of the iron on the Brunswick Rail Road
{Brunswick & Albany RR} in Georgia. |
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You propose to instruct him to call on the parties
representing the said Road and to inform them that the iron upon the
Road is wanted for the public service, and to request them to name the
terms or price for it. You further propose to instruct him, if the
representation of the Rail Road decline to fix a price to request them
to submit the question of the value of the iron to the decision of three
appraisers to be appointed by the District Judge, or the District
Attorney of the Confederate States, or to arbitrators chosen in any fair
manner. You further propose to instruct him, that the demands of the
public service are so urgent, that he will lose no time in sending the
iron to Atlanta, Ga, to be rolled into plates for sheathing vessels to
be completed in Georgia and elsewhere, and that the removal should be
commenced immediately. |
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You ask my opinion as to your right to take possession of
the iron on the Brunswick Road, it being wanted for the public service.
This iron, though on the Road, is not in use of the Rail Road Company. |
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By virtue of its right of eminent domain, the Government
has the right to take private property for the public use, paying just
compensation therefor. This right, by public law, is conceded to every
Sovereignty, Nation or State. It is implied in one clause of our
Constitution. But it has been repeatedly adjudged in this and other
Countries, that the right must be exercised in the mode prescribed by
the Constitution and laws, and for the object adjudged by their
respective Legislatures to be of public utility. In our Government,
which is imminently one of specific and limited powers, the right to
appropriate private property to the public use can only be exercised
legally in the mode provided by law. In Governments not restrained by
written Constitutions, where arbitrary power prevails; the will of the
Sovereign supersedes all rule on the subject. See New Orleans v The
U. S. 10 Peters 723; 2 Kent's Com. 339-40. |
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It is useless to cite further authorities to support a
principle so well established. It is too obvious to admit of argument,
that the mere existence of war, though declared by the legislative
authority, and the necessities which are incident to it, would not of
themselves legally authorize the Agents of the Government to seize the
private property of its own citizens, in the absence of some law
prescribing the mode of seizure and the use to be made of it. I have
searched diligently amongst our Statute to find some authority, given by
Congress, to make such seizures and use of private property, when the
public necessities seemed to demand it; but I have ben unable to find
any statute on the subject, covering the case you present. |
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I am advised by you that this iron, which you want, is of
absolute necessity to the Government, in its present emergencies. I hope
the necessity for seizure may be avoided by the patriotic prompting ???
of those to whom it belongs, and that a fair price will be willingly
received for it. But, if all other efforts fail to secure it, the
Government and its Agents can but commit a trespass, and be responsible
for such trespass to the owners of the Road. Whether this trespass shall
be committed, it is not my province to advise. It is my duty to declare
the law, as I find it to exist. |
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I have the honor to be, |
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&c. &c. |
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C. H. Watts |
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Atty. Genl. C. S. A. |
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