DEPARTMENT OF JUSTICE, November 30, 1864
Richmond, November 30, 1864.
The SECRETARY OF WAR:
Str: The act of Congress of June 14, 1864, authorizes the SurgeonGeneral and Commissary-General, for the purpose of obtaining supplies of whisky, brandy, and other spirituous liquors for the Army and hospitals, to establish distilleries for the manufacture of the same instead of resorting to contracts. I learn from the papers transmitted by you that under the authority of the act the Surgeon-General has established a distillery at Buchanan, in the State of Virginia, for the purpose of distilling spirituous liquors exclusively for the Army and hospitals, and that the circuit court for Botetourt County, under the authority of a law of Virginia prohibiting distillation, has issued an attachment ordering the sheriff to seize and take into his possession the distillery, grain, and all the material belonging to the Government, and that a criminal prosecution has been instituted in said court against the officer having the management of the distillery for the Government.
Upon examination of the several statutes of Virginia upon the subject of distillation it would seem to be the better construction that the prohibitions which they declare are directed not against the operations of the Confederate Gévernment in manufacturing spirituous liquors by its own agents and exclusively for its own use, but against those of private citizens distilling under contracts with the Government. But admitting this view to be incorrect and assuming the action taken in this case to be authorized by those statutes, then they are in this respect plainly unconstitutional.
Virginia, in common with her sister States, has accepted the Constitution of the Confederate States as her supreme law, which displaces and overrules all other conflicting laws. That Constitution confers upon Congress in the fullest and broadest terms the power ”to raise and support armies.” Of what avail is this power if it can be so easily rendered nugatory by State legislation? If the Legislatures of the States can prohibit and prevent any one of the steps necessary in the process of raising and supporting armies, they may prohibit and prevent them all. If they can prohibit the manufacture by the Government of hospital supplies, they can prohibit the manufacture of powder, arms, and all the munitions of war, and the enlistment of men, and so the whole war power of the Confederate Goyernment would be prostrate at the feet of the State Legislatures. I deem it unnecessary to elaborate the argument, as the very point in question has lately been twice presented for the consideration of the Attorney-General and decided in accordance with the views here expressed.
I have the honor to inclose you copies of the opinions of 18th of December, 1863, and 7th of March, 1864, in which you will find the subject fully considered. In regard to the course to be pursued by the Government, upon which I am requested to advise you, as a conflict of force with the authorities of a State ought only to be resorted to in a case of extreme emergency, if ever, there is but one remedy left, and that is to defend the suits in the court below, and, if necessary, take them by appeal to the highest tribunal of the State. I have every confidence that they will be adjudicated by that tribunal with a due regard to the constitutional rights of the Confederate States, as well as to those of the State of Virginia.
As the Surgeon-General intimates that delay may be injurious, and as the Legislature of Virginia is so soon to assemble, I respectfully suggest that the matter be laid before the Governor, with a request that he will call it to the attention of the Legislature, and thus give them an occasion, of which I doubt not they will readily avail themselves, so to modify their legislation as not to interfere with the exercise of the just powers of the Confederate States.
GEO. DAVIS, Attorney-General.