Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1851-02-28


thoriy of the United States It will be seem FLU
papers accompanying this communication that H.
attention of the marshal of Massachusetts, was a.;
tncty called to this provision of the law by Letter
from the secretary OF the Navy of the date of Oco.
Der 2Sth last. There is official information tbot
the marshal has provided any such place for the
confinement of his prisoners. If he has not # i; ~
be regretted that this power was not exercised hv
the marshal, under the direction of the district udg
Immediately the passage of the act of the ec;ss
ture of Massachuse of the Oath of March i843
and especially that it was not exercised on the mas
sage of the fugiveslaye law of the last session n,
when the attention of the marshal was afterwards
particularly drawn to it.
1t is true that the escape from the deputy mar.
shals in this case was not owing to the want of a
prison place of confinement but still it is not ca
sy to see how the prisoner could have been safely
aud conveniently detained, during an adjournment
Of the hearing for days. without such place Of
confinement. If it shall appear that such place
has been obtained directions to the marshal will be
given to lose no time in the discharge of his duty
| transmit to the Senate the copy of a proclama-
ton issued by the 18th instant in relation to-
these unexpected and deplorabe occurrences in Bos-
ton, together with copies of instructions from the De-
partmeDts of War and Navy, relative to the general
subject. And | communicate also, copies of tele-
graphic dispatches transmitted from the Department
OF State to the district attorney and marshal of the
United States for the district of Massachusetts, and
their answers thereto.
In regard to the last branch of the inquiry made
by the resolution of the Senate | have to observe
that the constitution declares that the President
shall take that the laws be faithfully executed
and that " he shall be commander chief of the
army and navy of the United States, and of the mi
tia of the several States when called into the actual
service of the United States" and that Congress
shall have power to provide for calling forth the mi
tia to execute the laws of the Union suppress in
surrectlon and repel invasons" From which is
appears that the army and navy are, by the consti-
OIacn0 he of tba
and probably legislation of Congress could add to
or diminish the power thus given, but by increasing
or diminishing abolishng altogether the army
and navy. But not so with the militia The Presi-
dent cannot call the militia into service even to exc
cute the laws repel invasions but by the authori
ty OF acts OF Congress passed for that purpose But
when the militia called into service in the man.
ner prescribed by law then the constitution itself
gives the command to the President. Acting on this
principle, Congress, by the act of February % 1885,
authorized the President to call forth the militia to
repel INVASION, and suppress instructions against
State government, and to suppress combinations
against the laws of the United States and cause the
laws to be faithfully executed" But the act pro-
ceeds to declare that whenever it may be necessary
in the judgment of the President, to use the military
force thereby directed be called forth the Presi
dent shall forthwith, by proclamation. command such
insurgents to disperse and retire peaceabv to their
respective abodes within limited time, These
words are broad enough to require proclamation
in all cases where militia called out under that
act whether to repel invasion, suppress insur-
rectjon, or to aid in executing the laws. This sec
ton has, consequently created some doubt whether
the militia could be called forth to aid in executing
the laws without previous proclamation. But vet
the proclamation seems to be in words directed only
against insurgents, and to require them to dispense
thereby implying not only an Instruction, but an
organized, at least an imbodied, force Such
proclamation in aid of the civil authority would Of
ten defeat the whole object, by giving such notice to
persons intended to be arrested that they would be
enabled to fly secrete themselves. The force may
be wanted sometimes to make the arrest and also
sometimes to protect the officer after it is made and
to prevent rescue | would, therefore, suggest that
this section be modified by declaring that nothing
therein contained shall be construed to require any
previous proclamation when the militia are called
forth, either to repe INVASION to execute the laws
suppress combinations against them and that the
President may make such call and place such mill
tia under the control of any civil officer of the United
States to aid him in executing the laws suppress
ing such combinations; and, while so employed,
they shall be paid by and subssted at the expense of
the United States.
Congress, not probably adverting to the difference
between the militia and the regular army, by the
act of March 3, 1907, authorized the President to
the land and naval forces of the United States
for the purposes for which he might call forth
the militia, and subject to the same proclamation
But the power of the President under the constitu
tion commander of the army and navy is gene
raj and his duty to the laws faithfully executed
not to be construed evincng any disposition in
Congress to limit restrain this constitutional au-
thority For greater certainty. however, it may be
well that Congress should modify or explain this act
in regard to its provisions for the employment of the
army and navy of the United States as we'll as that
regard to calling forth the militia 1t is supposed
not to be doubtful that all citizens, whether enrolled
in the militia or not, may be summoned as members
of the posse comitatus either by the marshal or a
commissioner, according to law and that it is their
duty to obey such summons. But perhaps it may be
doubted whether the marshal or q commissioner can
summon as the posse comtatus an organized militia
force, acting under its own appropriate officers, with
out the consent of such officers This point may de-
serve the consideration of Congress.
| use this occasion to repeat the assurance that,
far depends me, the laws shall be faithfully
executed. and all fOrcible opposition to them sup
pressed and to this end am prepared to exercise,
whenever it may become necessary, the power con-
sttutionally vested in to the fullest extent. am
fully persuaded that the great orty of the people
of this country warmly and strongly attached to
the constitution, the preservation of the Union, the
just support of the government and the maintenance
of the authority of law. | am persuaded that their
earnest wishes and the line of my constitutional du
ty concur; and doubt not frmness, moderation and
prudence strengthened and animated by the general
opinion of the people, will prevent the repetition of
occurrences disturbing the public peace and repro
batcd by all good men.
WILLARD FILLMORE
In AND AFTER THE Honey MooN-When Hon.
Truman Smith, senator from Connecticut, returned to
Washington with bis youthful accomplished and
handsome Alabama wife, somebody asked him how
many slaves she had "ony one said Truman,