204 



CONGRESS, UNITED STATES. 



Mr. Hill : " That is a right pertinent query. 

 I was going on to say that I should like this 

 section better if the words 'as a posse comita- 

 tus' were stricken out, because that phrase car- 

 ries the implication in the mind of the draughts- 

 man that it has been at some time lawful to 

 use the army as a posse comitatus, which I 

 utterly deny. It is my opinion that in the prop- 

 er and technical acceptation of the meaning 

 of the word, the army is never called out to 

 execute the law. I want to be understood here. 

 In one sense it is in execution of the law; in 

 the proper sense it is not. The courts through 

 their civil officers alone technically have au- 

 thority to execute the law that is, the ordi- 

 nary law, the judicial process of the country ; 

 and what we are referring to now is the judicial 

 process. Those judicial processes may be re- 

 sisted and the sheriff may call for his right arm, 

 as I said just now, his military force, if we can 

 use the term, if it is at all applicable. The 

 sheriff calls for his posse comitatus, and that is 

 unable to put down the opposition to the law. 

 Then it goes on, and it amounts to insurrection 

 or it amounts to domestic violence. Then the 

 Commander-in-Chief, the Executive, issues his 

 proclamation ordering the insurgents to dis- 

 perse, and the army cornes in to do what ? Now, 

 here is an important distinction to which I in- 

 vite the attention of the Senate. What do you 

 call in the army for ? Not to execute the law ; 

 that is a misapplication of the term. You call 

 in the army to suppress that insurrection. You 

 call in the army to suppress that domestic vio- 

 lence. Then when the insurrection is sup- 

 pressed, when the domestic violence is put 

 down, does the officer commanding the army 

 execute the process of the law ? By no means ; 

 but he having suppressed insurrection, he hav- 

 ing suppressed the domestic violence which 

 prevented the civil officer from executing that 

 process, the civil officer steps forward and ex- 

 ecutes it. That is the whole of it. The mil- 

 itary never executes the law. The military 

 puts down opposition to the execution of 

 the law when that opposition is too great for 

 the civil arm to suppress. That is the whole 

 of it. Therefore I say it ought to be unlaw- 

 ful in all cases to talk about calling upon the 

 army to execute the law. The courts must 

 execute the law ; executive officers and min- 

 isterial officers must execute the law; in 

 other words, civil officers must execute all laws 

 and execute all processes of the courts. If, as 

 I say, opposition to these processes goes to 

 such an extent that they are unable to execute 

 the law, and that opposition amounts to such 

 a degree that it becomes an insurrection, or do- 

 mestic violence, then let the military arm put 

 down the insurrection, put down the violence, 

 put down the opposition, and let the civil offi- 

 cer come forward and execute his process ; that 

 is all, and that is right. 



" Mr. President, I do not think that on either 

 aide of the chamber or in any section of the 

 country we should at any time be alluding to 



one or the other. I could go back into the his* 

 tory of New England and the history of every 

 portion of this country, and show that the laws 

 of different places have been resisted. We 

 have had insurrections, and we have had do- 

 mestic violence. They are not sectional in 

 their character. Wherever human nature ex- 

 ists they will exist. Wherever suffering exists 

 and wrong obtains these things are liable to 

 be. The great beauty of our system of govern- 

 ment is that it is to be governed by the people. 

 If there is anything that commends our system 

 of government as a government designed for 

 preservation, it is that the military power shall 

 never be called in to discharge a civil duty, to 

 execute a civil process. It ought always to be 

 unlawful for the military to undertake to ex- 

 ecute a civil process. As I say, they may put 

 down opposition to it, but the courts alone and 

 the civil officers alone ought to execute the 

 process. 



" Every day we see it in the papers and hear 

 it upon the wind that the people are demand- 

 ing that we shall have a stronger government. 

 It was the boast of our fathers that we did not 

 need military force except for the purpose of 

 repelling invasion and governing the Indian 

 tribes. Whenever the idea obtains that you 

 need a military power to govern the great body 

 of the people of this country, you have given 

 up the fundamental theory of your system of 

 government ; it is gone. I care not by what 

 agency it is brought about, the fact will remain 

 that whenever you need the military arm ha- 

 bitually, or, in better language, whenever you 

 conclude that it is right to use the army to ex- 

 ecute civil process, to discharge those duties 

 that belong to civil officers and to the citizens, 

 then you have given up the character of your 

 government ; it is no longer a government for 

 liberty ; it is no longer a government founded 

 in the consent of the people ; it has become a 

 government of force. The army is a govern- 

 ment of force; it has no civil functions in the 

 proper sense of the term." 



Mr. Bayard, of Delaware, said : " Mr. Presi- 

 dent, I endeavored to get the floor for the pur- 

 pose of offering a few words that I thought 

 would be satisfactory to both sides of this 

 chamber in explanation of the amendment of- 

 fered by the Senator from New York (Mr. 

 Kernan) in my absence to section 29, which 

 had been proposed to be stricken out by the 

 Senate Committee on Appropriations. 



" Section 29 in my judgment contains nothing 

 but the statement of truisms which at times, 

 however, it may be well and wholesome to as- 

 sert and reassert. It is no answer to say that 

 they are true, for if they are true they are 

 without just objection. On the third line of 

 the section are some words that seem to grate 

 harshly upon the sensibilities of certain gen- 

 tlemen in the chamber, they being ' under the 

 pretext ... of executing the laws,' as though 

 there had been something unfair or not real in 

 the proposed execution of the laws. I believe 



