sonable expenses, incurred for the above purposes, to be paid out of the treasury of the United States."

1

And a resolution of Congress of March 3, 1821, provides that "where any state or states, having complied with the recommendation of Congress in the resolution of the twenty-third day of September, 1789, shall have withdrawn or shall hereafter withdraw, either in whole or in part, the use of their jails for prisoners committed under the authority of the United States, the marshal in such state or states, under the direction of the judge of the district, shall be, and hereby is, authorized and required to hire a convenient place to serve as a temporary jail, and to make the necessary provision for the safekeeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose; and the said marshal shall be allowed his reasonable expenses incurred for the above purposes, to be paid out of the treasury of the United States." These various provisions of the law remain unrepealed.

By the law of Massachusetts, as that law stood before the act of the legislature of that state of the fourth of March, 1843, the common jails in the respective counties were to be used for the detention of any persons detained or committed by the authority of the courts of the United States, as well as by the courts and magistrates of the state. But these provisions were abrogated and repealed by the act of the legislature of Massachusetts of the 24th of March, 1843.

That act declares that "no judge of any court of record of this commonwealth, and no justice of the peace, shall hereafter take cognizance, or grant certificate, in cases that may arise under the third section of an act of Congress, passed February 12, 1793, and entitled, 'An act respecting fugitives from justice, and persons escaping from the service of their masters,' to any person who claims any other person as a fugitive slave within the jurisdiction of the commonwealth." And it further declares that "no sheriff, deputy sheriff, coroner, constable, jailer, or other officer of the commonwealth, shall hereafter arrest or detain, or aid in the arrest, or detention, or imprisonment in any jail or other building belonging to this commonwealth, or to any county, city, or town thereof, of any person, for the reason that he is claimed as a fugitive slave."

And it further declares that "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 one thousand dollars for every such offence, for the use of the county where said offence 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 offence 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 safekeeping 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 28th 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 afterward 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 despatches 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 "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 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, 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 commitatus 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.

CUBA PROCLAMATION.

APRIL 25, 1851.

WHEREAS there is reason to believe that a military expedition is about to be fitted out in the United States, with the intention to invade the island of Cuba, a colony of Spain, with which this country is at peace; and whereas it is believed that this expedition is instigated and set on foot chiefly by foreigners, who dare to make our shores the scene of their guilty and hostile preparations against a friendly power, and seek by falsehood and misrepresentation to seduce our own citizens, especially the young and inconsiderate, into their wicked schemes, an ungrateful return for the benefits conferred upon them by this people in permitting them to make our country an asylum from oppression, and in flagrant abuse of the hospitality thus extended to them: And whereas such expeditions can only be regarded as adventures for plunder and robbery, and must meet the condemnation of the civilized world, while they are derogatory to the character of our country, in violation of the laws of nations, and expressly prohibited by our own, which statutes declare "that if any person shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for any military expedition or enterprise to be carried on from thence against the territory or domains of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years:"

Now, therefore, I have issued this my proclamation, warning all persons who shall connect themselves with any such enterprise or expedition, in violation of our laws and national obligations, that they will thereby subject themselves to the heavy penalties denounced against such offences, and will forfeit their claim to the protection of this government, or any interference on their behalf, no matter to what extremities they may be reduced in consequence of their illegal conduct; and, therefore, I exhort all good citizens, as they regard our national reputation—as they respect their own laws, and the laws of nations-as they value the blessings of peace, and the welfare of their country, to discountenance, and by all lawful means prevent, any such enterprise; and I call upon every officer of this government, civil or military, to use all efforts in his power to arrest for trial and punishment, every such offender against the laws of the country.

SECOND ANNUAL MESSAGE.

DECEMBER 2, 1851.

Fellow-Citizens of the Senate and of the House of Representatives :

I CONGRATULATE you and our common constituency upon the favorable auspices under which you meet for your first session. Our country is at peace with all the world. The agitation which, for a time, threatened to disturb the fraternal relations which make us one people, is fast subsiding, and a year of general prosperity and health has crowned the nation with unusual blessings. None can look back to the dangers which are passed, or forward to the bright prospect before us, without feeling a thrill of gratification, at the same that he must be impressed with a grateful sense of our profound obligations to a beneficent Providence, whose paternal care is so manifest in the happiness of this highly-favored land.

Since the close of the last Congress, certain Cubans, and other foreigners resident in the United States, who were more or less concerned in the previous invasion of Cuba, instead of being discouraged by its failure, have again abused the hospitality of this country, by making it the scene of the equipment of another military expedition against that possession of her catholic majesty, in which they were countenanced, aided, and joined by citizens of the United States. On receiving intelligence that such designs were entertained, I lost no time in issuing such instructions to the proper officers of the United States, as seemed to be called for by the occasion. By the proclamation, a copy of which is herewith submitted, I also warned those who might be in danger of being inveigled into this scheme, of its unlawful character, and of the penalties which they would incur. For some time there was reason to hope that these measures had sufficed to prevent any such attempt. This hope, however, proved to be delusive. Very early in the morning of the third of August, a steamer called the Pampero departed from New Orleans for Cuba, having on board upward of four hundred armed men, with evident intentions to make war upon the authorities of the island. This expedition was set on foot, in palpable violation of the laws of the United States. Its leader was a Spaniard, and several of the chief officers, and some others engaged in it, were foreigners. The persons composing it, however, were mostly citizens of the United States.

Before the expedition set out, and probably before it was organized, a slight insurrectionary movement, which appears to have been soon suppressed, had taken place in the eastern quarter of Cuba. The importance of this movement was unfortunately so much exaggerated in the accounts of it published in this country, that these adventurers seem to have been led to believe that the Creole population of the island not only desired to throw off the authority of the mother-country, but had resolved upon that step, and had begun a well-concerted enterprise for effecting it. The persons engaged in the expedition were generally young and ill-informed. The steamer in which they embarked left New Orleans stealthily and without a clearance. After touching at Key West, she proceeded to the coast of Cuba, and, on the night between the 11th and 12th of August, landed the persons on board at Playtas, within about twenty leagues of Havana.

The main body of them proceeded to, and took posession of, an inland