CONGRESS, UNITED STATES. 



185 



a marshal of the United States can, where he 

 has a process of a Federal court to execute, 

 call upon the Army of the United States or 

 any portion of that Army as a posse comitatw 

 to execute that process, I deny the proposi- 

 tion. I deny that any law of Congress, at 

 least any that I have ever seen or heard of, 

 authorizes any such proposition. 



"Why, sir, that would break tip military 

 operations. What would have been said if 

 during the war, when a body of the troops of 

 the United States were marching through the 

 State of Ohio, marching to the defense of Cin- 

 cinnati, which was menaced by the Confederate 

 troops, the marshal in the city of Columbus 

 could have summoned a thousand, or two 

 thousand, or three thousand of those men to 

 execute some little process issuing out of the 

 District Court of the United States for the 

 southern district of Ohio and they were bound 

 to obey, because where there is power to sum- 

 mon a man as a part of a pose comitatus he is 

 bound to obey, and is guilty of contempt of 

 court if he does not obey? That will not do 

 at all. This right to summon the Army can 

 only be exercised where there is a statute that 

 confers the right. You might interfere with 

 all the military operations of the Government 

 if a marshal in his discretion could stop the 

 march of an army, divert it from its military 

 operations, and employ it in the execution of 

 some process ; it may be an execution in a 

 case between A B and C D. Take this very 

 case : what was it? It was a suit that professed 

 to be between A B and C D, two private 

 individuals. It was not a case to which the 

 State of Louisiana, as a State, was a party. 

 It could not be a party in any such case. Now, 

 it is said that in any case whatever " 



Mr. Carpenter, of Wisconsin, said: "Is there 

 not a great distinction between the case he 

 supposes that might have occurred in Ohio and 

 the case which he is considering? Is it not 

 one thing to say that the marshal of the United 

 States can, against the commanding general 

 of the Army or against the President, detach 

 from a marching column three thousand troops 

 and take them to enforce civil process, and 

 another to hold that the President of the 

 United States may say to the marshal, ' There 

 is a portion of the Army; if yon need them as 

 & posse, use them.' " 



Mr. Thnrman : " In respect to that, I am 

 extremely doubtful whether that can be done 

 without the authority of an act of Congress. 

 But I will not go into that, because I do not 

 understand such to be the facts here. I un- 

 derstand that these troops were used without 

 any direction from the General of the Army, 

 or without any direction whatsoever from the 

 President of the United States; but that, 

 tinder a midnight order of the judge of the Dis- 

 trict Court forsooth, for the District of Louisi- 

 ana, the State-House for the time being was 

 taken possession of by troops of the United 

 States, and nobody allowed to enter that State- 



House, however perfect his title might be, there 

 to be and there to act officially, except by 

 leave of the troops that held it in possession. 

 If there is any statute of Congress that author- 

 izes such a thing as that I confess my igno- 

 rance. I never saw any such thing." 



Mr. Edmunds : " Mr. President, one word in 

 reply to my good friend from Ohio (Mr. Thur- 

 man). The fugitive slave law of 1850 provided 

 in precisely the same terms that the enforce- 

 ment act under the fifteenth amendment pro- 

 vides, that the marshals in the execution of 

 the process of the court should have power to 

 summon and call to their aid the by-slanders 

 or posse comitatus of the proper county when 

 necessary. That is the authority conferred 

 upon the marshals. I have before me the in- 

 stance to which I referred in extenso. Here 

 is the opinion of Mr. Caleb Gushing, rendered 

 to the President of the United States in 1864, 

 upon the subject of paying the expenses of 

 that portion of the Army which was employed 

 by him as a posse comitatvs in enforcing the 

 extradition of a fugitive from labor. I will not 

 take up the time of the Senate in reading the 

 whole of this opinion, which is somewhat long 

 and very exhaustive, but will merely read an 

 extract or two going to show precisely the op- 

 posite of what I understand the Senator from 

 Ohio to claim, that the marshal of the United 

 States is empowered to call upon the people 

 composing the Army to assist him as s, posse 

 comitatvs, and that it is part of their duty to 

 obey. I do not mean a part of their duty to 

 obey against the orders of the President of the 

 United States, or of the commanding general, 

 when some extreme necessity of public affairs 

 requires them to do another thing. There 

 would be merely a conflict of duty, and yon 

 cannot perform both duties at the same time, 

 nnd therefore somebody must judge as to 

 which should be first performed. That would 

 be plain enough. But that does not meet the 

 point. Here is a case where there is no other 

 public exigency which requires the immediate 

 employment of these people who are called 

 upon to act as a posse comitatut, and that 

 raises the question. This opinion goes on to 

 say: 



I repeat, the poete comUatvi to aid the officer of the 

 law iu the execution of his duty is in the service of 

 the Government, not in the service of the individual 

 who sues out the process of the law to have the jus- 

 tice of the nation administered to him, which ad- 

 ministration is of the duty of the Government. To 

 uard against violence by wrong-headed, misguided, 

 isloyalcitizens, or by foreign force, is an important 

 obligation of every Government the grand purpose 

 and consideration, indeed, for which it is instituted. 

 Hence, when the officer of the law deems it neces- 

 sary and proper to raise the pone comitatut to aid 

 and assist him in executing the process of the law, 

 the extraordinary expense thereby incurred is prop- 

 erly payable by the Government. * * * These 

 considerations apply as well to the military as to 

 the civil force employed, for the posse comitatvt 

 comprises every person in the district, or county, 

 above the age of fifteen years ("Watson's Sheriff,'" 

 p. 60), whatever may be their occupation, whether 



