CONGRESS, UNITED STATES. 



199 



he is violating if he is to be charged with a 

 criminal offense." 



Mr. Kernan : " Does the Senator think it dan- 

 gerous to say that the army shall not be used 

 in reference to our own people unless the Con- 

 stitution or the law expressly authorizes it? 

 I think we should have express laws, where it 

 is used among our people, authorizing it, or it 

 should not be done." 



Mr. Edmunds, of Vermont, said : "Mr. Presi- 

 dent, it is rather a singular statute to pass, to 

 say that the army of the United States shall 

 not be used for the purpose of executing the 

 laws that is, of course, the laws of the United 

 States under any circumstances unless express- 

 ly authorized by an act of Congress or the Con- 

 stitution. Now, take the Constitution first: 

 The Constitution says that the President of the 

 United States shall be commander-in-chief of 

 the army and of the navy ; it says in the next 

 place that he shall take care that the laws are 

 faithfully executed that is, all laws. Then the 

 question at once arises whether under the Con- 

 stitution of the United States, saying no more, 

 it being the duty of the President to see that 

 the laws are faithfully executed, and he being 

 commander-in-chief of the army, the Constitu- 

 tion does not expressly authorize him to use 

 the army wherever power is lawfully to be re- 

 quired to execute the laws. Take the case of 

 an army officer being put on court-martial, or 

 the President being impeached for using the 

 army, under these two clauses of the Consti- 

 tution. All the lawyers of this body, being 

 then judges on an impeachment, get into a 

 great debate and a difference of opinion as to 

 whether that is within the Constitution or not; 

 and so, as the Senator from Minnesota (Mr. 

 McMillan) has said, it is quite desirable on an 

 occasion of this kind, whatever the provision 

 may be, to have a distinct and definite under- 

 standing as to what it does mean, so that all 

 persons may construe it alike. 



"Now, I should like to hear some person 

 tell me which way the law is on the case I 

 have put under these clauses of the Constitu- 

 tion. \Vould the President be justified under the 

 Constitution of the United States, having an 

 internal-revenue officer, whose duty is to seize 

 an illicit distillery and to seize it by force 

 which, of course, is implied in the word seize 

 in employing the army to assist in perform- 

 ing the lawful act of the revenue officer, it 

 being the duty of the President to see that the 

 laws are faithfully executed and he being com- 

 mander-in-chief of the army? Now, how are 

 we to answer that question ? Is it lawful to 

 employ the army for that purpose, there being 

 no statute, or is it not ? I should like to have 

 some Senator, who wants the section enacted, 

 tell me how he would decide that question to 

 begin with. 



" Then go to some other provisions : ' un- 

 less expressly authorized by act of Congress.' 

 Take the seven hundred and eighty-eighth sec- 

 tion of the Revised Statutes, which reads in 



this way (it happens to be open on my desk, 

 and my eye falls on it) : 



The marshals and their deputies shall have in 

 each State the same powers, in executing the laws of 

 the United States, as the sheriff's and their deputies 

 in such State may have, by law, ia executing the 

 laws thereof. 



" A marshal in the State of Vermont, under 

 that statute having the power of a sheriff, ap- 

 plying the laws of that State to the case in 

 hand, having process there to execute, would 

 have a right to call forth the militia and every- 

 body else, if he were resisted. In the State of 

 New Hampshire, over the border, the marshal 

 may have no such power, and it depends upon 

 the chief executive of the State ; but one or 

 the other, no matter whether it be the sheriff 

 or the executive, has the power to invoke mil- 

 itary aid. This statute of the United States 

 that I have read does not say that the marshal 

 of the United States may call upon any troops 

 that may be within his reach. It does not say 

 that he may call on the Chief Magistrate of the 

 United States, and that he may call forth either 

 the regular army or the militia, to enforce the 

 power of the law. There immediately arises 

 a grand question to try some person by im- 

 peachment or indictment or court-martial at 

 once, and subject him to severe penalties by a 

 majority of this body in case of impeachment, 

 or by a judge in case of an indictment, or a 

 court-martial in the case of a court-martial, as 

 happens to be the opinion that the law is one 

 way or the other. You can not say that it is 

 expressly authorized, because you have to take 

 two supposed logical and legal conclusions ; 

 and here is a provision that there must be an 

 express act of Congress which says that the 

 army may be used. 



" You will not find any such act of Congress 

 in a great many of the most necessary instances 

 where the power of the law is to be carried 

 into execution, and where it can only be car- 

 ried into execution by the exercise of force, 

 which is never legally applied but as the power 

 of the law ; and you are stranded at once, be- 

 cause this very statute upon which the whole 

 judicial process of the United States rests in 

 respect of its execution when there is any re- 

 sistance is in effect repealed ; and the army of 

 the United States (the very thing that ought 

 to be used if any force is necessary, because it 

 is under the command of competent and re- 

 sponsible officers, it is under the command of 

 the Chief Magistrate, who is bound to execute 

 the laws, rather than calling upon the military 

 or the citizens who may be bystanders) is set 

 aside. 



"Mr. President, if any Senator wants to 

 vote to leave the law in that way, let him do 

 it. I do not. There are other criticisms that 

 might be stated upon this section in respect of 

 its phraseology, one of which I will refer to. 

 It says now : 



Except in such cases and tinder such circum- 

 stances as such employment of said force may be 



