Any justice of the peace, sheriff, deputy sheriff, coroner, constable,
or jailer who shall offend against the provisions of this law by in any
way acting, directly or indirectly, under the power conferred by the
third section of the act of Congress aforementioned shall forfeit a sum
not exceeding $1,000 for every such offense to the use of the county
where said offense is committed, or shall be subject to imprisonment
not exceeding one year in the county jail.
This law, it is obvious, had two objects. The first was to make it a
penal offense in all officers and magistrates of the Commonwealth to
exercise the powers conferred on them by the act of Congress of the 12th
of February, 1793, entitled "An act respecting fugitives from justice
and persons escaping from the service of their masters," and which
powers they were fully competent to perform up to the time of this
inhibition and penal enactment; second, to refuse the use of the jails
of the State for the detention of any person claimed as a fugitive
slave.
It is deeply to be lamented that the purpose of these enactments is
quite apparent. It was to prevent, as far as the legislature of the
State could prevent, the laws of Congress passed for the purpose of
carrying into effect that article of the Constitution of the United
States which declares that "no person held to service or labor in
one State, under the laws thereof, escaping into another, shall in
consequence of any law or regulation therein be discharged from such
service or labor, but shall be delivered up on claim of the party
to whom such service or labor may be due" from being carried into
effect. But these acts of State legislation, although they may cause
embarrassment and create expense, can not 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 one State and escaping into another to the party to whom such
labor may be due. It is quite clear that by the resolution of Congress
of March 3, 1821, 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the use of the jails of the State has been withdrawn, in whole or in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 detention 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
a convenient place for the safe-keeping of prisoners committed under
authority of the United States. It 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 a letter from
the Secretary of the Navy of the date of October 28 last. There is no
official information that the marshal has provided any such place for
the confinement of his prisoners. 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 of the
legislature of Massachusetts of the 24th of March, 1843, and especially
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
particularly drawn to it.
It is true that the escape from the deputy marshals in this case was not
owing to the want of a 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 adjournment of the hearing for some days without such
place of confinement. If 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.
I transmit to the Senate the copy of a proclamation issued by me on the
18th instant in relation to these unexpected and deplorable occurrences
in Boston, together with copies of instructions from the Departments of
War and Navy relative to the general subject. And I communicate 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 answers thereto.
In regard to the last branch of the inquiry made by the resolution of
the Senate, I have to observe that the Constitution declares that "the
President shall take care that the laws be faithfully 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," and that "Congress shall have
power to provide for calling forth the militia to execute the laws of
the Union, suppress insurrections, 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
or abolishing altogether the Army and Navy. But not so with the militia.
The President can not 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 28, 1795, authorized the President to call forth the militia to
repel invasion and "suppress insurrections against a State government,
and to suppress combinations against the laws of the United States, and
cause the laws to be faithfully executed." But the act proceeds to
declare that whenever it may be necessary, in the judgment of the
President, to use the military force thereby directed to be called
forth, the President shall forthwith, by proclamation, command such
insurgents to disperse and retire peaceably to their respective abodes
within a limited time. These words are broad enough to require a
proclamation in all cases where militia are called out under that act,
whether to repel invasion or suppress an insurrection or to 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 a previous proclamation. 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 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 be enabled to fly 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 prevent
a rescue. I 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 subsisted 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, 1807, authorized the
President 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 President under the
Constitution, as Commander of the Army and Navy, is general, and his
duty to see the laws faithfully executed is general and positive; and
the act of 1807 ought not to be construed 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 regard to its provisions for the employment of the
Army and Navy of the United States, as well as that in regard to calling
forth the militia. It 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 a commissioner can
summon as the _posse comitatus_ an organized militia force, acting
under its own appropriate officers, without the consent of such
officers. This point may deserve the consideration of Congress.
I use this occasion to repeat the assurance that so far as depends on me
the laws shall be faithfully executed and all forcible opposition to
them suppressed; and to this end I am prepared to exercise, whenever
it may become necessary, the power constitutionally vested in me to
the fullest extent. I am fully persuaded that the great majority of
the people of this country are 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. I am persuaded
that their earnest wishes and the line of my constitutional duty
entirely concur, and I doubt not firmness, moderation, and prudence,
strengthened and animated by the general opinion of the people, will
prevent the repetition of occurrences disturbing the public peace and
reprobated by all good men.