The southern press. [volume] (Washington [D.C.]) 1850-1852, 1851-02-24


ject to imprisonment not exceediDg one year il
the county jail"
This law, il il obvious, had two objects: til.
first was 10 nuke II penal offence IN all officers
aud mag islFatss of the Commonwealth to exercise
| the pow ers conferred on them by the act of Con
gress Of the 18th of February, 1893, entitled " Ar
act respecting fugitives from justice and persons
escaping frons The service of their masters" and
which powers they were fully competent TO per
form up to the lime Of this Inhibition and pena
enactment; second, to refuse the use of the jaI!s
of the State for the detention ofany person claimed
AS fugitive slave.
| 1t is deeply to be amented that the purpose OF
these enactments is quite apparent. !, vas TO pre-.
vent, Ms far the legislature Of the State could
prevent the laws OF Congress, passed for the pur-
pose of carrying into effect the article Of the
Constitution Of the United States which declares
that "Do person held TO service or labor in one
State, under the laws thereof, escaping into
another, shall. in consequence Of any law reg
ulaton therein, be discharged from such service
or labor, but shall be delivered up claim Of the
party TO whom such service or labor may he due,
from being carried into effect But these acts OF
State legislation, although they may cause emhar-
rassment and create expense, cannot der0gate
either from the duty OF 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 10 whom such labor
may be due. II is quite clear that, by the resou-
ton Of Congress of March 3, 1921, the marshal
Of the United States, in any State in which the
use of the jails of the State has been withdrawn
IN whole or in part from the purpose Of the deten
ton OF persons committed under the authority Of
The United States, is not only empowered, but
expressly required, under the direction of the
Judge OF the district, to hire convenient place
Tor the safe Keeping Of prisoners committed under
the authority of the United States II will be
seen, from papers accompanying this communica
lion. that the attention Of the marshal Of Massa-
chusetts was distinctly called this provision Of
the law by letter from the Secretary ofthe Navy
Of the date Of October 20th last. There is no
official information that the marshal has provided
any such place for the confinement Of his prison
ers. If he has not, it 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 ofthe legislature Of Massa-
chusetts Of the Gath of March, 1843, and espe-
cialy that it was not exercised on the passage of
the Fugitive slave law of the last session. or when
the attention of the marshal was afterwards par
tIcularly drawn to it,
II is true that the escape from the deputy mar
shals IN this case was not owing to the want of
prison or place of confnement; but still it is not
easy to see how the prisoner could have been
safely and conveniently detained, during an ad-
Journment of the hearing for some days, without
such place of confinement. lit shall appear that
no such place has been obtained, directions to the
marshal will be given to lose no time in the dis
charge Of this duty.
transmit to the Senate the copy of a procla-
nation issued by me the 18Th instant, in rela-
ton to these unexpected and depornbe occur
rences in Boston, together with copies Of instruc-
lions from the Departments of War and Navy,
relative to the general subject. And communi-
cate, also, copies of Geographic dispatches trans
mtted from the Depa tment 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 care that the laws be faithfully exc
cuted, 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 and that
Congress shall have power to provide for calling
forth the militia to execute the laws of the Union
suppress Instruction, and repel invasons. -
From which 1t appears that the army and navy
are, by the Constitution, placed under the control
OF the Executive; and probably no Legislation OF
Congress could add to or diminish the power thus
gwen, but by increasing or diminishing, or abol-
lshIng 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 pre-
scribed by law, then the Constitution itself gives
the command 10 the President Acting on this
principle, Congress, by the act of February 2Slh
1873, authorized the President to call forth the
militia TO repel invasion, and suppress insurrec-
tons against u State government, and to suppress
Combinations against the laws Of the United
States, and cause the laws to be faithfully exc
cuted."
But the act proceeds to declare that whenever
1t may be necessary in the judgment of the Pre-
siden, to use the military force thereby directed
to be called forth, the President shall forthwith
by proclamation, command such insurgents to dis
perse, and retire peaceaby to their respective
aoodes within limited time. These words are
broad enough to require proclamation in all
cases where militia are called out under that act
whether to repel invasion, or suppress insur
recuon, or to and IN executing the laws. This
section has, consequently, created some doubt
whether the militia could be called forth to aid in
executing the laws without previous proclama-
ton. Bot yet the proclamation seems to be IN
words directed only against insurgents, and to re-
qu're them to dispense; thereby implying not only
an insurrection, but an organized, or at least an
embodied force. Such proclamation 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 lie enabled TO fl v
or 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 pre-
vent rescue. l 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 repel INVASION to execute the laws
or suppress combinations 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 aid him in executing the
laws, or suppressIng such combinations; and,
while so employed they shall be paid by and sub
sisted at the expense of the United States
Congress, rot probably adverng to the differ
ence between the militia and the regular army, by
the act OF March 3, 1907, authorized the Presi-
dent to use the land and and naval forces Of the |
United States for the same purposes for which he
might call forth the mil tia, and subject to the
same proclamation. But the power Of the Presi-
dent, under the Constitution, as commander of the
army and navy, is general and his duty to see
the laws faithfully executed is general and posi-
tive; and the act of 1907 ought not to be con- |
strued as evincing any disposition in Congress to
limit or restrain this constitutional authority For
greater certainty, however, it may be well that
Congress should modify or explain this act in re-
gard to its provisions for the emnovpoept or III.