CONGRESS, UNITED STATES. 



205 



I 



that a proposition containing a wholesome con- 

 stitutional truth can certainly be couched in 

 language offensive to no man. It is not neces- 

 sary that the language in such a case should 

 bear unjustly upon the feelings of any man. 

 Upon a friendly and personal consultation with 

 gentlemen of both parties in this chamber, I 

 found the idea was acceptable to permit the 

 section to stand as the House had sent it to us, 

 with the evisceration of three or four words 

 capable of an uncivil construction, and the in- 

 sertion of one or two more that should have 

 the effect to round off the proposition that the 

 army of the United States is the creature of 

 the Constitution and the laws of the United 

 States, and that in this land we know of no 

 power that is not subordinate to law. There- 

 fore in the present case the proposition was to 

 recite that it was riot lawful to employ the 

 army of the United States in violation of the 

 law or the Constitution, but that the method 

 of its employment must simply be in accord- 

 ance with the law of its creation and the 

 powers whereby alone it must exist. In that 

 it struck me as being nothing more than a 

 truism. 



"I only desire to say that the section as 

 amended under my suggestion offers to me no 

 obstacle of any constitutional character that I 

 can imagine to the vote of Senators on either 

 side of the chamber, and its adoption will lead 

 to the passage of this bill in order that the day 

 of adjournment may find the work of Congress 

 properly completed and the Government in 

 full possession of the funds and powers to 

 carry into execution the laws upon the statute- 

 book." 



Mr. Kirkwood, of Iowa, said : " I wish to 

 say a word. When the idea of amending this 

 bill so as to prohibit the use of the army for 

 any purpose not authorized by the Constitution 

 and the laws was suggested to me, it appeared 

 to me to be so self-evident a proposition that I 

 thought it could not be objected to. No man 

 certainly would object to the use of the array 

 for purposes authorized by the Constitution 

 and the laws, and no man ought to want the 

 army to be used for purposes not authorized 

 by the Constitution and the laws. But the 

 discussion here has developed this condition 

 of affairs : Senators upon both sides of the 

 chamber differ widely as to the purposes for 

 which the army may be lawfully used. Some 

 Senators insist that it may be lawfully used by 

 marshals, by revenue agents, as a posse comi- 

 tatus to aid them in the discharge of their du- 

 ties, and to put down opposition to the law. 

 Other Senators say this can not be done. This 

 section provides in substance that if an officer 

 of the army shall permit the men under his 

 command to be used, and shall himself be used, 

 to aid a marshal or to aid a revenue officer, he 

 shall be subject to a fine of $10,000, or impris- 

 onment not exceeding two years, or both, if 

 the court shall determine that the views of 

 one set of Senators are right and the views of 



the other set, of course, wrong ; and it throws 

 upon these officers the burden of determining 

 a question upon which Senators so widely dif- 

 fer. Is that fair to our army? is it a right 

 thing for us to do ? is it a manly thing for us 

 to do ? " 



Mr. Bayard: "I submit to my honorable 

 friend that I do not understand that there is a 

 diminution of any power under the law or the 

 Constitution by this proposed section ; it stands 

 just as it is to-day. It simply requires that the 

 army shall not be used under the existing law 

 and Constitution of the United States ; that is 

 all." 



Mr. Kirkwood : " That is all right in itself 

 as a statement of principle." 



Mr. Bayard: "The Senator may think that 

 such a declaration is entirely needless, that it 

 is useless; but nevertheless there can be no 

 harm in its insertion. We find that it has 

 been insisted upon by another branch of Con- 

 gress, and it is certainly such a provision as I 

 think the honorable Senator from Iowa would 

 most readily assent to, that the action of the 

 army must at all times be a lawful action, a 

 legal action, and the authority for their action 

 must be determined under the Constitution and 

 existing laws." 



Mr. Kirkwood : " There is no question, I re- 

 peat, that the army ought to be used for all 

 purposes authorized by the Constitution and 

 laws. There is no question that it ought not 

 to be used for any purpose not authorized by 

 the Constitution and laws." 



Mr. Edmunds : u That states it exactly." 



Mr. Kirkwood : " There is no dispute about 

 that in the Senate: but, without ourselves 

 agreeing upon the circumstances under which 

 the army may be lawfully used, differing as 

 widely as the poles as to the purposes for 

 which the army may be lawfully used, we un- 

 dertake by this section to say that if the 

 officers of the army take the views of one set 

 of Senators, they shall be subjected to the 

 penitentiary or to a fine. I repeat the ques- 

 tion, Is that fair to these men? Should we 

 not go to work and define clearly and unmis- 

 takably the purposes for which the army may 

 be lawfully used, before we say that if the 

 officer allows himself to be used for a particu- 

 lar purpose, he may be sent to the peniten- 

 tiary for doing so ? " 



Mr. Bayard: "May I ask my honorable 

 friend, is there any citizen of the United States, 

 whether in the naval or military branch of the 

 service or in civil life, who does not commit 

 any act at the peril of its being lawful or not ? 

 Is it not plain that constantly officers of the 

 law are called upon to execute the laws? 

 There are things they may lawfully do and 

 things they may not do, but every officer is at 

 his peril, looking at the statute to find author- 

 ity there for his act. In the present case there 

 is no jeopardy in which the soldier stands so 

 long as he keeps within the pale of the Con- 

 stitution and the laws. There is no more 



