Government to interfere; and it is admitted in the argument that it was the knowledge of this decision that put an end to the armed opposition to the charter government and prevented any further efforts to establish by force the proposed constitution. The interference of the President, therefore, by announcing his determination, was as effectual as if the militia had been assembled under his orders; and it should be equally authoritative, for certainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government, or in treating as wrongdoers or insurgents the officers of the government which the President had recognized and was prepared to support by an armed force. In the case of foreign nations the government acknowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union.

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe and at the same time equally effectual. When citizens of the same State are in arms against each other and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and must, therefore, be respected and enforced in its judicial tribunals.

A question very similar to this arose in the case of Martin v. Mott, 12 Wheat., 29-31. The first clause of the first section of the act of February 28, 1795, of which we have been speaking, authorizes the President to call out the militia to repel invasion. It is the second clause in the same section which authorizes the call to suppress an insurrection against a State government. The power given to the President in each case is the same, with this difference only, that it can not be exercised by him in the latter case except upon the application of the legislature or executive of the State. The case above mentioned arose out of a call made by the President by virtue of the power conferred by the clause, and the court said that "whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." The grounds upon which that opinion is maintained are set forth in the report, and, we think, are conclusive. The same principle applies to the case now before the court. Undoubtedly if the President, in exercising this power, shall fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it.

The condition of the Army at this time (1842) was one of comparative inactivity, as indeed its strength amply justified. On the 1st of October the whole number of troops in service was 9,847, being then nearly 2,000 in excess of the number authorized, and these were occupying 72 posts, while 1,644 officers and men were still in Florida. "The invasion of Texas by Mexico," says the Secretary of the Army, of War in his annual report, "and the threatening appearances of some of the wild tribes at the southwest, renders it expedient that a strong corps of observation should be placed near our southwestern boundary line, as well to keep the Indians in that quarter at peace among themselves, as to check any

Condition

1842-1846.

disposition and prevent any attempts to engage in the conflict in which Texas was about to be involved." The apprehensions of the Administration were to be speedily realized, as indeed there was the best of reasons for expecting. The ready acceptance on the part of Texas of the terms of annexation preferred by this Government excited the ill will of the Government of Mexico, which at once set on foot extensive preparations to invade and subjugate Texas. General Taylor was accordingly sent to the Rio Grande frontier with an “army of occupation," to supply which troops were drawn from the seaboard and northern frontier. The exaggerated accounts of the strength of the Mexican forces, and the meagerness of his own, induced General Taylor to make requisition on Louisiana for militia, and the two companies of artillery from New Orleans, thus unwarrantably called out, though subsequently authorized by Congress, were the first volunteer troops to enter the Mexican war. Later, General Taylor called upon Texas and Louisiana for four regiments each, which were promptly furnished. As soon as it became known that Mexico had commenced hostilities, Congress recognized the existence of war between the United States and Mexico, and by act of May 13, 1846, authorized the President to accept 50,000 volunteers. Under this authority requisitions were made upon the States of Arkansas, Mississippi, Alabama, Georgia, Tennessee, Kentucky, Missouri, Illinois, Indiana, Ohio, and Texas, and the Regular Army was increased to 17,000. The response to these requisitions was prompt and unhesitating, and the situation was thus removed from one of invasion or domestic violence to that of actual war. The official date for the beginning of this war is April 24, 1846; for its termination, May 30, 1848.

1848-1855.

Notwithstanding the enlargement of the national domain growing out of the acquisition of the vast territory gained from Mexico and the consequent expansion of frontier, the Regular Army was not increased; on the contrary, it was reduced nearly 2,000 below the The Regular Army, authorized strength of 1838. By the act of July 7, 1838, it was fixed at 12,539, and by acts of May 13, 15, and 19, June 18 and 26, 1846, February 11 and March 3, 1847, it had been gradually enlarged, until the termination of hostilities found an authorized force of 30,865. But this, by the acts of August 14, 1848, was cut down to 10,317, and with that inconsiderable number it continued to garrison its 60 to 75 posts and guard the coast and frontier until 1855, when, by the act of March 3 of that year, it was increased to 12,698, and thus remained until the breaking out of the civil war.

During all this period (1842-1855) the country was singularly free from domestic disturbances. The exception was in the territories recently gained from Mexico. "The peculiar condition of the territories of California and New Mexico," says the Secretary of War in his annual report for 1849, "in respect to their internal governments and the absence of any clearly defined authority by Congress for this

object, has imposed delicate and difficult duties on the Army. One of its assigned duties is to aid civil functionaries, when required, in the preservation of public tranquillity. But it is believed that the civil authority, so far as it had its origin in political power, in a great measure disappeared by the transfer of the sovereignty and jurisdiction from Mexico to the United States. The military regulations established for their government during the war were superseded by the return of peace. A large concourse of foreign emigrants, not familiar with our institutions and habits, has been assembled in one of the territories and engaged in a pursuit eminently calculated to produce collisions and bloodshed. Amidst all these difficulties the Army, aided by the confirmed habit of self-government in which the American citizen is reared, has protected these territories from general or unusual disorders."

As time progressed, these seeming difficulties adjusted themselves. The governors of California and Oregon deemed the small regular force wholly inadequate to protect their territories from the disorders incident to the incoming of the vast hordes of adventurers called thither by the unexpected discovery of gold, and from the predatory bands of bad Indians. Under these circumstances they requested permission to organize companies of rangers to be called out at such times and for such periods as emergencies might demand. But this the President deemed incompatible with the Constitution and laws, and declined to authorize. Two additional regiments were sent to the Pacific coast, and with this force the new territories were speedily quieted.

*

* *

*

The next serious disturbance was to come from New England, a section heretofore remarkable for its domestic quiet and order. "The passage of the fugitive slave act," says Mr. Wilson in his history of the slave power, "was the signal for a general commotion throughout the land. Its uplifted hand was directed first against the fugitives, of whom it was estimated that there were more than 20,000 in the free States for beside them there were large numbers of free persons with whom these fugitives had intermarried, and to whom they were joined in the various relations of social and religious life." The specially offensive features of this law (act of September 18, 1850), which was a revival of the law of 1793, were those which made it the duty of United States marshals to arrest and return all fugitives brought to their attention, authorizing them to summon for that purpose as large a posse as might be necessary, and making the Government responsible for their delivery to their former masters. Immediately upon the passage of this bill public meetings were held all over the North; Massachusetts and New York were especially

a

a Rise and Fall of the Slave Power in America. Henry Wilson (Boston, 1874), Vol. II, p. 304 et seq.

active in denunciation of the measure. The execution of the law was everywhere opposed; in many cases successfully. At Harrisburg, Pa., Syracuse, N. Y., Philadelphia, and other places, slaves who had been arrested were rescued and their captors severely handled.

The two cases which attracted the most attention at the time, and served perhaps to accelerate the zeal of the officers, were those of Simms and Shadrach. On February 15, 1851, Shadrach, a waiter in a coffee

The Shadrach case, February 15,

1851.

house in Boston, was arrested under a warant issued by a United States commissioner, and brought before the latter for examination. The hearing had been postponed and the prisoner remanded to the custody of the deputy marshal. While the counsel were conferring, the door was forcibly broken open, the prisoner seized, carried away, and sent to Canada, where he arrived safely. The excitement was intense. On the 18th of February the President issued a proclamation in which, after reciting the incident at Boston, he called upon all well-disposed citizens to rally to the support of the laws of their country; required and commanded all officers and persons, civil and military, to aid and assist by all means in their power in quelling this and all similar combinations and assisting the marshal to recapture the prisoner, and further commanding the officers of the courts to cause all persons concerned in the rescue to be immediately arrested and proceeded with according to law." At the same time the following instructions were sent to the commanding officer of the United States troops in Boston Harbor:

WAR DEPARTMENT, Washington, February 17, 1851.

SIR: Information has just been communicated to the President that a number of persons, principally people of color, in the city of Boston did a few days since combine to resist the execution of the law providing for the arrest of fugitive slaves, and did forcibly rescue a slave who had been arrested from the custody of the officers of justice. It is possible that the civil authorities may find it necessary to call in the military force to aid in the execution of the law. If such should be the case, and the marshal or any of his deputies shall exhibit to you the certificate of the circuit or district judge of the United States in the State of Massachusetts, stating that in his opinion the aid of a military force is necessary to insure the due execution of the laws, and shall require your aid and that of the troops under your command as a part of the posse comitatus, you will place under the control of the marshal yourself and such portion of your command as may be deemed adequate to the purpose. If neither the circuit or district judge shall be in the city of Boston when the exigency above referred to shall occur, the written certificate of the marshal alone will be deemed sufficient authority for you to afford the requisite aid.

Very respectfully, etc.,

C. M. CONRAD,
Secretary of War.b

a Messages and Papers of the Presidents. Richardson's compilation, vol. 5, p. 109. See also Attorney-General Cushing: "A marshal of the United States, when opposed in the execution of his duty by unlawful combinations, has authority to summon the entire able-bodied force of his precinct as a posse comitatus. This authority comprehends, not only bystanders and other citizens generally, but any and all organized armed force, whether militia of the State or officers, soldiers, sailors, and marines of the United States." (6 Opin., 466.)

The Simms case,
April 3, 1851.

On the 3d of the following April a second case occurred, which, if less fortunate for the fugitive, was more exasperating to the antislavery element in Boston. Thomas M. Simms, a fugitive slave from Georgia, was on that day arrested by the Boston police on a warrant issued by United States Commissioner Curtis, on the application of the United States marshal, on the pretence of being a thief, and taken to the court-house and put under guard. Intelligence of the arrest spread quickly throughout the city and an immense crowd hurried to the scene. The court-house was surrounded by chains, the entire police force put on duty, and a serious riot happily averted. A writ of habeas corpus was refused and Simms was ordered to be returned to his master. At 5 o'clock the next morning he was taken from his cell, placed in a hollow square of 300 policemen heavily armed, and put on board a vessel under orders for Savannah. A large body of militia occupied Faneuil Hall and other points prepared to render assistance, but the early hour prevented the anticipated outbreak. Great popular excitement succeeded; indignation meetings attended by immense throngs were held at several points in Boston and throughout New England. That serious riots were averted at this time seems to have been solely due to the forbearance of the people, a majority of whom were unalterably opposed to slavery.

The

May 26, 1854.

The impending outbreak was merely delayed. On the 23d of May, 1854, one Charles F. Suttle, of Virginia, applied to United States Commissioner Edward G. Loring, of Boston, for a warrant under the fugitive-slave law for the seizure of one Anthony Burns, then residing in that city, whom he claimed had fled from his home Anthony Burns riots, some two years before. A warrant was granted, and Burns, who had not the slightest warning of his apprehension, was arrested on a false pretext, taken to the court-house, and turned over to the United States marshal. On the 25th he was brought before the commissioner, who adjourned the hearing until the 27th. This arrest and the unwonted publicity given to all its details created the most intense excitement throughout the city. On the night of the 26th immense meetings were held at Faneuil Hall and other places for large assemblages, and it was openly avowed that Burns should not be taken from the city. The meetings counseled a rescue of the prisoner; a night attack on the court-house was proposed and carried; 50,000 people were in the streets. Without apparent plan or hope of success the assault was made, but easily repulsed, and the rioters, who included some of the leading anti-slavery men of Boston, were driven from the scene, to be arrested later by the police. One of the marshal's guard was killed and several of the assailants badly wounded. At 3 a. m. on the morning of the 27th there was delivered to the commanding officer at Fort Independence the following papers: