The republic., 1851-02-22

COUmOuWe4l
justice Of the peace, shall hereafter take cog
nizance, or grant certificate. in cases that
may arise under the third section of an act
Of Congress passed February IL, 1898, and en-
and persons escaping from the service Of theS mas
ters' to any person who claims any other person
as fugitive slave within the jurisdiction Of the
Commonwealth" And it further declares that
jailor, or other officer of this Commonwealth, shall
hereafter arrest detain, aid in the arrest or
or imprisonment in any Jail other
building belonging to this Commonwealth, or to
any county, city, town thereof of any person for
the reason that he is claimed fugitive slave"
And il further declares that " any justice Of the
peace, sheriff, deputy sheriff. coroner, constable,
or aiIor, who shall offend against tho provisions of
this law by in any way acting directly indirectly
under the power conferred by the third section Of
the act of Congress aforementioned, shall forfeit
sum not exceeding one thousand dollars for every
such offence for the use OF the county where said Of
fence is committed, shall be subject to imprson.
mcnt not exceeding one year in the county Jail.
This law, it is obvious, had two objects: the first
was to make 1t a penal offence in all officers
and magistrates of the commonwealth to exercise
the powers conferred on them by the act of Con-
gress of the 18th of February, 1893, entitled can
act respecting fugitives from justice, and persons
escaping from the service Of their MASTERS and
which powers they were fully competent to per-
form up TO the time of this inhibition and penal
enactment; second, to refuse the Of the jails
of the State for the detention of any person claimed
as fugitive slave.
It's deeply to be lamented that the purpose of
of these enactments is quite apparent. 1t was to
prevent, far the Legislature Of the State could
prevent, the laws of Congress passed for the pur-
pose of carrying into effect that article of the Con-
stitution Of the United States, which declares that
'no person held to service labor in State un-
der the laws thereof escaping into another, shall,
in consequence of any law regulation therein be
discharged from such service or labor but shall be
delivered up on claim Of the party to whom such
Iatxo he
into effect. But these acts of State legislation al
though they may cause embarrassment and create
expense, cannot derogate either from the duty or
the authority Of Congress to carry out fully and
fairly the plain and imperative constitutional
provision for the delivery of persons, bound to
labor in State and escaping into another,
to the party to whom such labor may be due.
1t is quite clear that, by the resolution of Con-
gress OF third Of March, 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 in part from the purpose of the detention
of persons committed under the authority of the
United States, is not only empowered but express
y required under the direction of the judge of the
District, to hire convenient place for the safe
keeping of prisoners committed under authority of
the United States. Il will be seen from papers ac-
companying this communication, that the atten-
ton of the marshal Of Massachusetts distinct
ly called to this provision of the law by letter
from the Secretary of the Navy of the date of Oc-
tober 2Sth last. There is no official information
the confinement OF his prisoners. If he has not it
is to be regretted that this power not exercised
by the marshal, under the direction of the District
Legislature Of Massachusetts. Of the gath March,
l843; and especially that il was not exercised on
the passage Of the Fugitive Slave law of the last
session, or when the attention of the marshal was
afterwards particularly drawn to it.
tits true that the escape from the deputy
in this case was not owing to the want OF prison.
place Of confinement, but still it is easy to
see how the prisoner could have been safely and
detained, during an adjournment 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 be
given to lose no time in the discharge of this duty
transmit to the Senate the copy of proclama-
ton issued by on the 18th instant, in relation
to these unexpected and deplorablc occurrences in
Boston, together with copies ofnstructions from the
Departments Of War and Navy relative to the
general subject And communicate also copies
of telegraphic dispatches transmitted from the De-
partment of State to the district attorney and mar
shall Of the United States for the district of Mass
chusetts, 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
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 Con
gress shall have power to provide for calling forth
press insurrection, and repel invasions.'' From
which it 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 given
but by increasing or diminishing abolishing al
together the army and navy. But not 30 with the
militia. The President cannot call the militia into
service, even to execute the lawson repel
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 Presi-
dent Acting on this principle, Congress, by the
act OF February 49, 1875, authorized the President
to call forth the militia to repel ihvssion, and sup-
press insurrections against State government,
and to suppress combinations against the laws of
the United States, and cause the laws to be faith
fully executed" But the act proceeds to declare
that whenever 1t may be necessary, in the judg-
ment OF the President, TO use the military force
thereby directed TO be called FORTH the President
shall forthwith, by Exclamation, command such
insurgents 10 disper and retire pcaceably to their
respective abodcs, within limited time. These
words are broad enough TO require q proc Iamation
in all where militia called under that
act, whether to repel invasion suppress an in
surrection, or 10 aid 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 procla-
nation. But yet the proclamation seems TO be
in words directed only against insurgents, and
to require them to disperse, thereby implying,
not only an insurrection, but an organized,
or at least an embodied, force. Such a proc
lamaton in aid of the civil authority would often
defeat the whole object by giving such notice to per-
sons intended to be arrested that they would be en-
abled to fly secrete themselves. The force may be
wantedsomctimcs to make the arrest, and also some
times 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 called
forth, either to repe 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 subssted at
the expense Of the United States.
Congress, not probably adverting to the diffe-
renee between the militia and tho regular army,
by the act of March 3, 1907 authorized the Prcsi.
dent to 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 pro-
clamation. But the power Of the President, under
the Constitution, as commander of the army and
navy, is general; and his duty to see the laws
A.