The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-02-27

ment and create expense, cannot derogate either |
from the duty or the authority Of Congress to
carry out fully and fairly the plain and impera-
tive constitutional provision for the delivery of
persons bound to labor in one State and escaping
into another, TO the party TO whom such labor |
may be due. Ii is quite clear that, by the reso- |
luton of Congress Of March 3, 1921, the mar |
shall Of the United States In any State in which |
the use Of the jails of the State has been with
drawn in whole or in part from the purpose of
the detention Of persons committed under the au-
thority of the United States, is not only en- |
powered, but expressly required, under the di-
rection OF the Judge Of the district TO hire a
venient place for the safe-keeping of prisoners
committed under authority of the United States,
1t will be seen, from papers accompanying this
communication, that the attention Of the marshal
Of Massachusetts was distinctly called to this
provision OF the law by letter from the Srcrc-
tsry of the Navy, Of the date of October 2Sth
last. There is no official information that the
marshal has provided any such place for the con-
fnement of his prisoners. II he has not, ii is TO
be regretted that this power was not exercised by
the marshal, under the direction Of the district
Judge, Immediately on the passage Of the act Of
the Legislature of Massachusetts, Of the 9th Of
March, lS43, aud especially that it was not exer-
cised on the passage OF the fugitive slave law of
the last session, or when the attention Of the
shall was afterwards particularly drawn to it.
1t is true that the escape from the deputy mar
shas in this case was not owing TO the want Of
prison or place of confinement but still it is not
easy to see how the prisoner could have been
safely and conveniently detained, during an adj
jOumment Of the hearing for some days, without
such place Of confinement II It shall appear that
no such place has been obtained directions to the
marshal will 80 given TO lose no time N t&c dis
charge of this duty
| transmit to the Senate the copy Of proca-
nation issued by me on the 18th instant in rela-
ton to these unexpected and deplorable occur
rences in Boston, together with copies of in
structions from the Departments Of War and
Navy, relative to the general subject. And com
muncate, also, copies Of telegraphic dispatches
transmitted from the Department of State to the
district attorney and marshal Of the United States
for the district of Massachusetts,, and their an
swers 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 care that the laws be faith
fully executed and that "he shall be commander
in-chief Of the army and navy Of the United
States, and of the militia OF the several States |
when called into the actual service Of the United
States,n and that Congress shall have power TO |
provide for calling forth the militia to execute
the laws of the Union, suppress instruction, and
repel inyasionsn From which it appears that the
army and navy are, by the Constitution placed |
under the control of the Executive; and, proba-
bly,, no legislation Of Congress could add to or
diminish the power thus given, but by increasing
or Diminishing, sbolishing altogether, the army
and navy But not so with the militia The
President cannot call the militia into service,
even to execute the laws or repel invasions, but |
by the authority Of acts Of Congress passed for
that purpose. But when the militia are called
into service in the manner prescribed by law, then
the Constitution itself gives the command to the |
President. Acting on this principle Congress
by the act Of February 2S, 1898, authorized the |
President to call forth the militia to repel INVASION
and suppress instructions against State Gov
eminent, and to suppress combinations against
the laws OF the Uritc1 States and esnse the laws
TO be faithfully executed But the act proceeds
TO declare that whenever il may be necessary, in
the Judgment Of the President, to use the military
force thereby directed to be called forth, the Pres
ident shall forthwith, by proclamation, command
such insurgents to dispense, and retire peaceably
10 their respective abodes within limited time
These words are broad enough TO require proc
lsmation In all cases where militia are called out
under that act, whether to repel invasion, or sup
press On instruction, or to aid in executing the
laws This section has, consequently, created
forth 10 aid in executing the laws without pro-
vious proclamation. But yet the proclamation
seems to be in words directed only against insur-
gents, and to require them to dispense thereby
implying, not only an instruction, but An organ
lied or, at least an imboded force. Such proc
lamaton in aid Of the civil authority would often
defeat the whole object, by giving such notice TO
persons intended TO be arrested that they would
be enabled TO fly or secrete themselves. The
force may be wanted sometimes to make the ar
rest and also sometimes TO protect the officer after
IL IL made, and to prevent n rescue. ] wonld
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 repel
INVASION, TO ex ecute the laws, or suppress combi-
nations against them and that the President may
make such call and place such militia under the |
control Of any civil officer Of the United States to
lid him in executing the laws or suppressing such
and while so employed, they shall
be paid by and subsisted at the expense Of the
United States
Congress- not probably adverting to the differ
ence between the militia and the regular army,
by the act Of March 3, 1907, authorized the Pres-
lent TO use the land and naval forces Of the
United States for the same purposes for which he
might call forth the militia, and subject to the
same proclamation. But the power Of the Presi-
lent, under the Constitution, a. commander OF
The army and navy, is general and his duty to
zee the laws faithfully executed is general and |
positive and the act Of 1907 ought not to be CON-
,trued as evncing any disposition In Congress to
limit or restrain this constitutional authority.
For greater certainty, however, II may he well |
that Congress should modify or explain this act
in regard to it's provisions for the employment Of
The army and navy OF the United States, MS we'll
~ that In regard to calling forth the militia IL
Is supposed not to be doubtful that NIL citizens,
whether enrolled In the militia or not, may be
summoned ms members Of the posse comitatus,
either by the marshal or commissioner, accord
ing TO law, and that 1t Is their duty 10 obey such
summons. But perhaps 1t may be doubted whether
he marshal or n commissioner can summon as the
posse comitatus an organized militia force acting
under its own appropriate officers without the
,onseot Of such officers This point may deserve
The consideration Of Congress
use this occasion 10 repeat the assurance that,
20 far as depends on me, the laws shall be faith
'ally executed, and all forcbe opposition to them
Impressed and TO this end am prepared to ex-
.rcise, whenever IL may become necessary, the
power consitutionally vested In me TO the fullest
,xtent. ! nm fully persuaded that the great ma
ority Of the people Of this country are warmly
md strongly attached TO the Constitution, the
Of the Union, the just support of the
and the maintenance Of the authority
4 law. am persuaded that their earnest wishes
md the line Of my constitutional duty entirely
oncur; and doubt not 6rmness, moderation, and
strengthened and animated by the gen
raj opinion Of the people, will prevent the repe-
ition of occurrences disturbing the public peace
nd reprobated by all good men
MLLaRD FiLLMong.