J98 



CONGRESS, UNITED STATES. 



comitatus and order it about the polls of an 

 election. We all know that that might be used 

 for an entire overthow of the rights of citizens 

 at the polls. I do not want to discuss this 

 question in any other spirit than one that will 

 lead us to say whether or not Congress shall 

 provide that the army may be used as a posse 

 comitatus, which means in the law a body of 

 citizens summoned to suppress a riot or any- 

 thing of that kind, which should be called upon 

 before- you call out the military. That has been 

 claimed by implication, I suppose. Hence I 

 think Congress should say that there shall be 

 no right to use the army as a posse comitatus 

 by the peace officers of the State or of the Gen- 

 eral Government unless there is some statutory 

 or constitutional provision that expressly au- 

 thorizes it.' 1 



Mr. Beck, of Kentucky, said: "Mr. Presi- 

 dent, I am sorry the Senator from Delaware 

 (Mr. Bayard) is not here. I desire to state in a 

 few words what is the meaning of this, as we 

 construed it in committee. As early as 1854, 

 while Mr. Caleb Cushing, a very distinguished 

 lawyer, was Attorney-General, a very exciting 

 case was up relative to returning a fugitive 

 slave. He gave an opinion in these words, to 

 be found in volume vi. of ' Opinions of Attor- 

 neys-General,' page 473 : 



These considerations apply as well to the military 

 as to the civil force employed, for the posse comita- 

 tus comprises every person in the district or county 

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

 page 60), whatever may be his occupation, whether 

 civilian or not, and including the military of all de- 

 nominations, militia, soldiers, mariners, all of whom 

 are alike bound to obey the commands of a sheriff 

 or marshal. The fact that they are organized as 

 military bodies, under the immediate command of 

 their own officers, does not in any way affect their 

 legal character. They are still the posse comitatus. 



" That has been followed by other Attorneys- 

 General. The right has been denied over and 

 over again. The army authorities have issued 

 orders, some of which I hold in my hand, for- 

 bidding the officers to obey the marshals when 

 they were ordered out as a posse comitatus. 

 Statutes have been enacted, the civil-rights bill 

 for example, authorizing certain officers to call 

 upon the army. The civil-rights bill author- 

 izes certain officials to call on ' such portions 

 of the land and naval forces to aid them in ex- 

 ecuting the process,' required by that statute, 

 as they please : and nobody denies it, and this 

 section does not seek to change that. Wherever 

 the law authorizes it, it is admitted to be right; 

 and there are two or three other statutes of 

 that sort. But when you turn to section 2024 

 of the Revised Statutes, relative to the elective 

 franchise, this is provided : 



SEO. 2024 The marshal or his general deputies, or 

 nuch special deputies as are thereto specially empow- 

 ered by him in writing, and under his hand and 

 seal, whenever he or either or any of them is for- 

 ibly resisted in executing their duties under this 



tie, or shall, by violence, threats, or menaces be 

 prevented from executing such duties, or from ar- 

 reaUag 0117 person who has committed any offense 



for which the marshal or his general or "his special 

 deputies are authorized to make such arrest, are, and 

 each of them is, empowered to summon and call to 

 his aid the bystanders or posse comitatus of his dis- 

 trict. 



" The Attorney-General's opinion authorizes 

 the marshal in a case like that, where he is 

 simply allowed by the law to call on the by- 

 standers or posse comitatus to aid him, to call 

 upon the army of the United States as individ- 

 uals out of their organization, and bring them 

 in as a sheriff could. That raise? a conflict of 

 duties if this section be enacted. 



" I understand the whole object of this 

 section as amended is to limit the use by the 

 marshals of the army to cases where by law 

 they are authorized to call for them, and not 

 to assume that they are in any sense a posse 

 comitatus, to be called upon when there is no 

 authority given them to call upon anything but 

 the posse comitatus. An order issued in 1872 

 from the War Department, subsequent to the 

 opinion of the late Attorney-General, seemed 

 to proceed upon the idea that the Federal 

 troops can not be used by the marshal as a posse 

 comitatus." 



Mr. Elaine : u I suppose that the only place in 

 which troops would be needed in this form at 

 all, or in any way, that this section would pre- 

 vent, would be in aid of the revenue laws; 

 and I should like to ask the honorable Senator 

 from Kentucky if he thinks the passage of this 

 act, this broad proclamation to all sections ot 

 this country, would not effectually break down 

 the efforts against illicit distillation t " 



Mr. Beck : " I think not." 



Mr. Elaine: ''The question I rose to ask is 

 this : Where exists to-day the grievance which 

 this provision of law is intended to correct ? 

 Where is the oppression that this is intended 

 to remove? Where is the maladministration 

 which this is intended to cure? The case must 

 be made out by those who ask for the law. I 

 am not asking for any new law. The Com- 

 mittee on Appropriations do not instruct me 

 to ask for any new law on the subject, but 

 they instruct me to ask the Senators who sus- 

 tain this, what is the reason for it ? " 



Mr. Windom: "I wish to suggest to Sena- 

 tors who have discussed this subject, that the 

 discussion thus far has proceeded on the as- 

 sumption that it was only when the army was 

 used as a posse comitatus that it was forbid- 

 den. But the section says ' when used as a 

 posse comitatus or otherwise ' ; whether used 

 in that way or as a portion of the army, it is 

 forbidden." 



Mr. Sargent, of California : "It ought to be, 

 unless it is according to the Constitution and 

 the laws." 



Mr. McMillan, of Minnesota: " Mr. President, 

 it seems to me that the amendment submitted 

 to this section would be very oppressive, and 

 would be a snare in many instances. In order 

 to constitute a crime it should be accurately 

 denned. Every person should know what law 



