A Compilation of the Messages and Papers of the Presidents, Volume - James D. Richardson
MILLARD FILLMORE.
WASHINGTON, _December 30, 1850_.
_To the Senate of the United States_:
I herewith transmit to the Senate, in reply to their resolution of the
26th instant, a report from the Secretary of State, with accompanying
papers.[3]
MILLARD FILLMORE.
[Footnote 3: Correspondence with the Austrian charge d'affaires
respecting the appointment or proceedings of the agent sent to examine
and report upon the condition and prospects of the Hungarian people
during their struggle for independence.]
WASHINGTON, _January 3, 1851_.
_To the House of Representatives_:
By a resolution passed by the House of Representatives on the 24th day
of July, 1850, the President was requested to cause to be prepared and
communicated to the House certain opinions of the Attorneys-General
therein specified. On inquiry I learned that the force employed in the
Attorney-General's Office was not sufficient to perform this work;
consequently, I employed Benjamin F. Hall, esq., a counselor at law,
on the 9th day of September last, to execute it, and requested him to
commence it immediately. I informed him that I was not authorized to
give any other assurances as to compensation than that it rested with
Congress to provide and fix it. I believe Mr. Hall to be in all respects
competent and well fitted for the task which he has undertaken, and
diligent in the performance of it; and it appears to me that the most
just mode of compensation will be to make a per diem allowance of $8 per
day for the time actually employed, to be paid on the certificate of the
Attorney-General.
I also transmit herewith a portion of the manuscript prepared in
pursuance of said resolution, with a letter from Mr. Hall to me
indicating the mode in which he thinks the work should be prepared and
printed, which appears to me worthy of consideration and adoption by the
House.
MILLARD FILLMORE.
WASHINGTON, _January 10, 1851_.
_To the Senate of the United States_:
I have the honor herewith to transmit to the Senate a communication from
the Secretary of the Navy on the subject of the discipline of the Navy,
suggesting such amendments of the law as may be necessary in consequence
of the recent act abolishing flogging; to which I respectfully invite
the immediate attention of Congress.
MILLARD FILLMORE.
WASHINGTON, _January 14, 1851_.
_To the House of Representatives of the United States_:
In compliance with the resolution of the House of Representatives
adopted July 18, 1850, requesting the President to communicate his views
on sundry questions of rank, precedence, and command among officers of
the Army and officers of the Navy, respectively, and of relative rank
between officers of the Army and Navy when brought into cooperation, I
caused to be convened a board of intelligent and experienced officers in
each branch of the service to consider the matters involved in said
resolutions and to report their opinion for my advice and information.
Their reports have been made, and I have the honor herewith to submit
copies of them, together with bills drafted substantially in accordance
therewith, on the subject of rank in each branch of the service.
The subject is one of great interest, and it is highly important that it
should be settled by legislative authority and with as little delay as
possible consistently with its proper examination.
The points on which it will be perceived that the two boards disagree in
regard to relative rank between officers of the Army and Navy are not
esteemed of very great practical importance, and the adoption of the
rule proposed by either would be acceptable to the Executive.
But even if a decision on these shall be suspended, it is hoped that the
bills which are designed to regulate rank, precedence, and command in
the Army and Navy as separate branches of service may receive the
sanction of Congress, with such amendments as may be deemed appropriate,
in the course of the present session.
MILLARD FILLMORE.
WASHINGTON, _February 3, 1851_.
_To the Senate of the United States_:
I transmit to the Senate a report from the Secretary of State, with
accompanying papers,[4] in answer to their resolution of the 30th
ultimo.
MILLARD FILLMORE.
[Footnote 4: Correspondence relative to the possessory rights of the
British Hudsons Bay Company in Oregon.]
WASHINGTON, _February 12, 1851_.
_To the Senate of the United States_:
I transmit herewith a report from the Secretary of State, with accompanying
documents,[5] in answer to the Senate's resolution of the 1st
instant.
MILLARD FILLMORE.
[Footnote 5: Correspondence with Spain relative to the claim of the
owners of the schooner _Amistad_ for compensation on account of the
liberation of negroes on board said vessel.]
WASHINGTON, _February 13, 1851_.
_To the Senate of the United States_:
I herewith communicate to the Senate, for its consideration, a general
convention between the United States and the Swiss Confederation,
concluded and signed at Berne on the 25th day of November last by Mr. A.
Dudley Mann on the part of the United States and by Messrs. Druey and
Frey-Herosee on the part of the Swiss Confederation. I communicate at
the same time a copy of the instructions under which Mr. Mann acted and
his dispatch of the 30th November last, explanatory of the articles of
the convention.
In submitting this convention to the consideration of the Senate I
feel it my duty to invite its special attention to the first and
fifth articles. These articles appear to contain provisions quite
objectionable, if, indeed, they can be considered as properly embraced
in the treaty-making power.
The second clause of the first article is in these words:
In the United States of America citizens of Switzerland shall be
received and treated in each State upon the same footing and upon the
same conditions as citizens of the United States born in or belonging to
other States of the Union.
It is well known that according to the Constitution of the United States
a citizen of one State may hold lands in any other State; and States
have, sometimes by general, sometimes by special, laws, removed the
disabilities attaching to foreigners not naturalized in regard to the
holding of land. But this is not supposed to be a power properly to be
exercised by the President and Senate in concluding and ratifying a
treaty with a foreign state. The authority naturally belongs to the
State within whose limits the land may lie. The naturalization of
foreigners is provided for by the laws of the United States, in
pursuance of the provision of the Constitution; but when, under the
operation of these laws, foreigners become citizens of the United
States, all would seem to be done which it is in the power of this
Government to do to enable foreigners to hold land. The clause referred
to, therefore, appears to me inadmissible.
The fourth clause of the same article provides, among other things, that
citizens of Switzerland may, within the United States, acquire, possess,
and alienate personal and real estate, and the fifth article grants them
the power of disposing of their real estate, which, perhaps, would be no
otherwise objectionable, if it stood by itself, than as it would seem to
imply a power to hold that of which they are permitted to dispose.
These objections, perhaps, may be removed by striking out the second
clause of the first article and the words "and real" in the fourth
clause. An amendment similar to the last here suggested was made by the
Senate in the convention between the United States and the King of
Bavaria, the ratification of which, as amended, the Senate advised and
consented to on the 15th day of March, 1845.
But there is another and a decisive objection, arising from the last
clause in the first article. That clause is in these words:
On account of the tenor of the federal constitution of Switzerland,
Christians alone are entitled to the enjoyment of the privileges
guaranteed by the present article in the Swiss Cantons. But said
Cantons are not prohibited from extending the same privileges to
citizens of the United States of other religious persuasions.
It appears from this that Christians alone are, in some of the Swiss
Cantons, entitled to the enjoyment of privileges guaranteed by the first
article, although the Cantons themselves are not prohibited from
extending the same privileges to citizens of the United States of other
religious persuasions.
It is quite certain that neither by law, nor by treaty, nor by any other
official proceeding is it competent for the Government of the United
States to establish any distinction between its citizens founded on
differences in religious beliefs. Any benefit or privilege conferred by
law or treaty on one must be common to all, and we are not at liberty,
on a question of such vital interest and plain constitutional duty,
to consider whether the particular case is one in which substantial
inconvenience or injustice might ensue. It is enough that an inequality
would be sanctioned hostile to the institutions of the United States and
inconsistent with the Constitution and the laws.
Nor can the Government of the United States rely on the individual
Cantons of Switzerland for extending the same privileges to other
citizens of the United States as this article extends to Christians. It
is indispensable not only that every privilege granted to any of the
citizens of the United States should be granted to all, but also that
the grant of such privilege should stand upon the same stipulation and
assurance by the whole Swiss Confederation as those of other articles of
the convention.
There have been instances, especially some of recent occurrence,
in which the Executive has transmitted treaties to the Senate with
suggestions of amendment, and I have therefore thought it not improper
to send the present convention to the Senate, inviting its attention
to such amendments as appeared to me to be important, although I have
entertained considerable doubt whether it would not be better to send
back the convention for correction in the objectionable particulars
before laying it before the Senate for ratification.
MILLARD FILLMORE.
WASHINGTON, _February 13, 1851_.
_To the Senate of the United States_:
In answer to the resolution of the Senate of the 10th instant, calling
for information relative to a contract alleged to have been made by Mr.
I.D. Marks with the Mexican Government, I transmit a report from the
Secretary of State and the documents[6] which accompanied it.
MILLARD FILLMORE.
[Footnote 6: Relating to drafts upon the Treasury of the United States
by Mexico on account of indemnity due that Government in pursuance of
the treaty of Guadalupe Hidalgo.]
WASHINGTON, _February 13, 1851_.
_To the Senate of the United States_:
In compliance with the resolution of the Senate of the 28th of January,
1851, I have the honor to transmit herewith reports from the Secretary
of State and Secretary of the Treasury, giving the required
correspondence in the case of the British ship _Albion_, seized in
Oregon for an alleged violation of the revenue laws.
MILLARD FILLMORE.
WASHINGTON, _February 15, 1851_.
_To the Senate of the United States_:
In addition to the information heretofore communicated, I now transmit
to the Senate a report from the Secretary of State, with accompanying
papers,[7] in answer to their resolution of the 28th ultimo.
MILLARD FILLMORE.
[Footnote 7: Additional correspondence relative to the seizure of the
British ship _Albion_.]
WASHINGTON, _February 15, 1851_.
_To the Senate of the United States_:
I herewith transmit to the Senate a report[8] from the Secretary of
State, in answer to their resolution of the 10th instant.
MILLARD FILLMORE.
[Footnote 8: Relating to taxation by New Granada on United States
citizens when _in transitu_ across the Isthmus of Panama, and to
the United States mail service at said Isthmus.]
WASHINGTON, _February 18, 1851_.
The PRESIDENT OF THE SENATE:
In addition to the papers already transmitted to the Senate in
compliance with its resolution of the 28th ultimo, I have the honor
herewith to transmit an additional report[9] from the Secretary of the
Treasury.
MILLARD FILLMORE.
[Footnote 9: Relating to the seizure of the British ship _Albion_.]
EXECUTIVE DEPARTMENT, _February 19, 1851_.
_To the Senate of the United States_:
I have received the resolution of the Senate of the 18th instant,
requesting me to lay before that body, if not incompatible with the
public interest, any information I may possess in regard to an alleged
recent case of a forcible resistance to the execution of the laws of the
United States in the city of Boston, and to communicate to the Senate,
under the above conditions, what means I have adopted to meet the
occurrence, and whether in my opinion any additional legislation is
necessary to meet the exigency of the case and to more vigorously
execute existing laws.
The public newspapers contain an affidavit of Patrick Riley, a
deputy marshal for the district of Massachusetts, setting forth the
circumstances of the case, a copy of which affidavit is herewith
communicated. Private and unofficial communications concur in
establishing the main facts of this account, but no satisfactory
official information has as yet been received; and in some important
respects the accuracy of the account has been denied by persons whom it
implicates. Nothing could be more unexpected than that such a gross
violation of law, such a high-handed contempt of the authority of the
United States, should be perpetrated by a band of lawless confederates
at noonday in the city of Boston, and in the very temple of justice. I
regard this flagitious proceeding as being a surprise not unattended by
some degree of negligence; nor do I doubt that if any such act of
violence had been apprehended thousands of the good citizens of Boston
would have presented themselves voluntarily and promptly to prevent it.
But the danger does not seem to have been timely made known or duly
appreciated by those who were concerned in the execution of the process.
In a community distinguished for its love of order and respect for the
laws, among a people whose sentiment is liberty and law, and not liberty
without law nor above the law, such an outrage could only be the result
of sudden violence, unhappily too much unprepared for to be successfully
resisted. It would be melancholy indeed if we were obliged to regard
this outbreak against the constitutional and legal authority of the
Government as proceeding from the general feeling of the people in a
spot which is proverbially called "the Cradle of American Liberty."
Such, undoubtedly, is not the fact. It violates without question the
general sentiment of the people of Boston and of a vast majority of the
whole people of Massachusetts, as much as it violates the law, defies
the authority of the Government, and disgraces those concerned in it,
their aiders and abettors.
It is, nevertheless, my duty to lay before the Senate, in answer to its
resolution, some important facts and considerations connected with the
subject.
A resolution of Congress of September 23, 1789, declared:
That it be recommended to the legislatures of the several States to
pass laws making it expressly the duty of the keepers of their jails
to receive and safe keep therein all prisoners committed under the
authority of the United States until they shall be discharged by the
course of the laws thereof, under the like penalties as in the case of
prisoners committed under the authority of such States respectively;
the United States to pay for the use and keeping of such jails at the
rate of 50 cents per month for each prisoner that shall, under their
authority, be committed thereto during the time such prisoner shall be
therein confined, and also to support such of said prisoners as shall
be committed for offenses.
A further resolution of Congress, of the 3d of March, 1791, provides
that--
Whereas Congress did, by a resolution of the 23d day of September, 1789,
recommend to the several States to pass laws making it expressly the
duty of the keepers of their jails to receive and safe keep therein all
prisoners committed under the authority of the United States: In order,
therefore, to insure the administration of justice--
_Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled_, That in case any State shall
not have complied with the said recommendation the marshal in such
State, under the direction of the judge of the district, be authorized
to hire a convenient place to serve as a temporary jail, and to make the
necessary provision for the safe-keeping 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.
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 23d 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 safe-keeping 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 24th 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 a 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 this 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 $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.