CONGRESS, UNITED STATES. 



201 



in the execution of these laws. This is a gov- 

 ernment of the people and not of force. The 

 marshal in North Carolina can command the 

 power of the county just as the sheriff com- 

 mands the power of the county, and that is 

 the way the law directs it shall be done. Why, 

 sir, I undertake to say that Congress has no 

 power to invest the marshal with authority to 

 use the army to enforce the process of the law, 

 and I respectfully challenge any Senator to 

 point me to such authority. 



"The fact that statutes have been passed 

 that authorize or seem to authorize it does not 

 necessarily imply that they harmonize with the 

 Constitution. Such statutes, if they are made, 

 are void. It was never known, never contend- 

 ed for in this country, until the dangerous and 

 troublesome times that we have fallen upon of 

 late, that such power was claimed or exercised. 

 The army, under the Constitution, is not to be 

 used for the purpose of executing the law in 

 the ordinary sense of executing the law. It 

 can only be called into active service for the 

 purpose of suppressing insurrection, where 

 there is organized resistance against the Gov- 

 ernment in the execution of the law ; and then, 

 as my friend from Pennsylvania suggests, the 

 forms of the law must be strictly observed, as 

 they were observed by the President when the 

 army was used to suppress the whisky insur- 

 rection in western Pennsylvania. Last sum- 

 mer we had an illustration in two or three 

 States, where there were strikes of great mag- 

 nitude, of the use of the army to suppress gen- 

 eral resistance to the law and authority. The 

 army was called in then promptly, but only on 

 due application to the President by the proper 

 State authorities ; and even then many wise 

 citizens of this country thought the army was 

 called for when it ought not to have been. 

 The army was not used then until civil power 

 was exhausted not until the forms of law 

 were complied with, until application was duly 

 made to the President to use the army in sup- 

 pressing such insurrectionary and lawless move- 

 ments ; and, as a friend suggests, the amend- 

 ment now pending, although I did not mean 

 to advert to it at this moment, does not pre- 

 vent the use of the army for such purposes ; 

 on the contrary, it provides expressly for the 

 use of the army in such cases." 



Mr. Edmunds : " How does it provide ex- 

 pressly for the use of the army in such cases ?" 



Mr. Merrimon : " It provides expressly in this : 



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 



"Now see the exception 



except in such cases and under such circumstances 

 as such employment of said force may be expressly 

 authorized by act of Congress." 



Mr. Edmunds : " Where is the act of Con- 

 gress that you say authorizes it ? What is au- 

 thorized ? " 



Mr. Merrimon: "But this section has been 

 amended so as to insert the words ' or by the 

 Constitution.' Here is the act of Congress; 

 you will find it under the head of ' Insurrection,' 

 title 69 in the Revised Statutes, page 1034." 



Mr. Hill, of Georgia, said: "Mr. President, I 

 think if the Senate would do itself the justice to 

 suppress very unnecessary partisan feelings in 

 this matter, this discussion would not be without 

 great benefit. So far as I am concerned, there 

 might have been a time when I would have 

 felt great interest in this proposed law in its 

 practical effect in the country in which I live. 

 That time has passed by, and I feel no other 

 interest in it now than such as every American 

 citizen ought to feel. I can not understand why 

 any American citizen ought to feel any interest 

 in it other than to see to it that the proper dis- 

 tinctions between the use of the army and the 

 use of civil power should be kept before the 

 people and kept before us all. 



" I should like the section better if the words 

 ' as a posse comitatus or otherwise ' were strick- 

 en out altogether. I say to my friend from 

 North Carolina, for I see he has a very clear 

 and I think a very correct idea of it, that I 

 think the use of the words ' as a posse comita- 

 tus ' is wrong, because they imply the idea that 

 the army can be used as a posse comitatus." 



Mr. Merrimon: " Whereas it can not." 



Mr. Hill: "Yes, whereas it can not. The 

 section provides that 



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. 



" That implies that heretofore it was lawful 

 to employ the army as a posse comitatus. Now 

 I lay down the broad proposition that the 

 army can not be employed as a posse comi- 

 tatus. It never was intended to be employed 

 as a posse comitatus. A posse comitatus is a 

 wholly different thing from an army; it is 

 different in every respect from an army; it is 

 different in England, different in America, dif- 

 ferent in every free country, from an army; 

 and the idea of making a posse comitatus of the 

 army, or any part of the army as such, is itself 

 an absurdity. It never was lawful, it never 

 will be lawful, to employ the army as a posse 

 comitatus until you destroy the distinction be- 

 tween the civil power and the military power 

 in this country. If I may use a sort of para- 

 doxical term, I would say that the posse comi- 

 tatus might be considered as the military arm 

 of the civil power; that the purpose of the 

 military when called out in such a case is to 

 do that which the civil power can not do in 

 its character as a civil power. The posse comi- 

 tatus belongs to the civil power and not to the 

 military." 



Mr. "Edmunds: "But, if I may inquire of 

 the Senator, with his permission, is not the 

 posse comitatus the whole body of citizens who 

 are within the reach of the sheriff or the mar- 

 shal?" 



Mr. Hill : " Unquestionably." 



