CONGRESS, UNITED STATES. 



197 



tee on Appropriations have added to this $860,- 

 914; so that the total of this bill is $26,195,- 

 688, as amended. 



" The total of the estimates for the year was 

 $31,292,000, so that the bill as it now stands is 

 $5,110,000 below what the War Department 

 estimated. I shall be perfectly frank and say 

 that I have no doubt the result of this bill will 

 be as it was in the last year, a considerable de- 

 ficiency to be provided for the next year ; but 

 the Senate committee, instead of taking that 

 fight on hand now with the House, preferred 

 to let the necessity develop itself, if it shall de- 

 velop, and meet it when it comes. 



" The twenty-ninth section is : 

 SEO. 29. From and after the passage of this act it 

 shall not be lawful to employ any part of the army of 

 the United States as a posse comitatus, or otherwise, 

 under the pretext or for the purpose of executing 

 the laws, except in such cases and under such cir- 

 cumstances as such employment of said force may be 

 expressly authorized by act of Congress ; and no 

 money appropriated by this act shall be used to pay 

 any of the expenses incurred in the employment of 

 any troops in violation of this section ; and any per- 

 son violating the provisions of this section shall be 

 deemed guilty of a misdemeanor, and, on conviction 

 thereof, shall be punished by tine not exceeding 

 $10,000 or imprisonment not exceeding two years, or 

 by both such fine and imprisonment. 



" The Committee on Appropriations recom- 

 mend that that be struck out. This, in brief, 

 is all that I have to say on behalf of the com- 

 mittee, except as the sections in their reading 

 from the Clerk's desk may give rise to discus- 

 sion." 



Subsequently, the twenty-ninth section being 

 under consideration, Mr. Kernan, of New York, 

 said: "I wish to state that the Senator from 

 Delaware (Mr. Bayard) had prepared an amend- 

 ment to perfect it, as it passed the House, and 

 as he is detained at the funeral he asked me to 

 offer it. In line 3 of section 29, 1 move to strike 

 out, after the word 'otherwise,' the words ; un- 

 der the pretext or ' ; and in line 6, between the 

 word ' by ' and the word ' act, ' to insert * the 

 Constitution or by ' ; so as to read : 



SEO. 29. From and after the passage of this act it 

 shall not be lawful to employ any part of the army of 

 the United States as a posse comitatus, or otherwise, 

 for the purpose of executing the laws, except in such 

 cases and under such circumstances as such employ- 

 ment of said force may be expressly authorized by 

 the Constitution or by act of Congress ; and no mon- 

 ey appropriated by this act shall be used to pay any 

 of the expenses incurred in the employment of any 

 troops in violation of this section ; and any person vio- 

 lating the provisions of this section shall be deemed 

 guilty of a misdemeanor, and, on conviction thereof, 

 shall be punished by fine not exceeding $10,000 or 

 imprisonment not exceeding two years, or by both 

 such fine and imprisonment." 



The amendment to the amendment was agreed 

 to. 



The Presiding Officer : " The question recurs 

 on striking out section 29, as amended." 



Mr. Windom, of Minnesota, said : " I hope the 

 attention of the Senate may be directed to this 

 section before it is acted upon. I regard it as 

 a very important matter, and I am satisfied 



that if the Senate fully understood it there 

 would be more interest in the subject than 

 there seems to be. 



"My objection to the section as amended 

 now is that it is utterly useless legislation. It is 

 in my judgment a very foolish expression, that 

 can do no good but may do harm. Asa matter 

 of course, you can not limit the .power of the 

 President as authorized and granted by the 

 Constitution. I suppose that there is really 

 no limitation on that power as now expressed 

 by the amendment of the Senator from New 

 York. But what is the object of passing such 

 a proposition as this? I understand perfectly 

 what was the object as the section originally 

 existed, but I should like to have the Senator 

 from New York explain what can be the object 

 or purpose of the Senate in now passing the 

 section as he has amended it. The Committee 

 on Appropriations recommend that it be strick- 

 en out." 



Mr. Kernan : "The Senator from Delaware 

 (Mr. Bayard) is under the impression that 

 amending the section in this way would make it 

 quite satisfactory to the House. I suppose no 

 one claims that you can use the army as a posse 

 comitatus unless that use is authorized by the 

 Constitution, which it clearly is not, or by act 

 of Congress. The Constitution authorizes its 

 use to repel the invasion of a State and to 

 suppress domestic insurrection, on the call of 

 the Legislature if in session, or, if it be not in 

 session, on the call of the Governor. 



"All gentlemen will remember that there 

 was a claim made in 1876 that the army, or- 

 ganized or unorganized, could be used as a posse 

 comitatus without the call of the Legislature 

 or the Governor. We have officers known in 

 the acts of Congress as marshals of election in 

 certain States. It will be remembered that the 

 law officer of the Government prior to the elec- 

 tion in 1876 issued a circular as Attorney-Gen- 

 eral, in which it was claimed that the mar- 

 shals could rightfully call upon the army in its 

 organized condition, or as soldiers, to keep or- 

 der and do certain things about the election. 

 In a general order from the Adjutant-General's 

 Office, dated September 7, 1876, these instruc- 

 tions were recited. What the Attorney-Gen- 

 eral claimed was the power of the marshal to 

 use the army as a posse comitatus. 



"Without having prepared this amendment 

 or having bestowed special thought upon it, it 

 is such an amendment as I think every Ameri- 

 can citizen will desire in order to prevent such 

 claim of the law officer of the Government act- 

 ing in conjunction with the War Office that the 

 marshals may summon and order up a company 

 of United States soldiers to the election, to pre- 

 vent disorder or to execute any law there. It 

 would be an entire overthrow, it seems to me, 

 of a fundamental principle of the laws of this 

 country, of all our traditions, to say that the 

 army at the instance of the law officer, through 

 a marshal or a deputy, special or general, of 

 election, may call a body of the army as a posse 



