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CONGRESS, UNITED STATES. 



has on the other hand the command of the 

 civil law, which pronounces a penalty against 

 him if he does the act. Now which is he to 

 obey ? There he is. He is commanded to per- 

 form an act which may he essential to the sal- 

 vation of the country or some of its interests. 

 He is to determine whether he will incur the 

 penalty of the court-martial or the penalty of 

 the law, and he is to decide that on the instant 

 of action, without any opportunity of examin- 

 ing the law, under the circumstances not within 

 his reach." 



Mr. Bayard: "The ultimate question is 

 whether he lives under a government of laws 

 or not ; because if his military superior orders 

 him to do an act in violation of the law of the 

 hind, then he is guilty who executes it, and he 

 is guilty who compels its execution ; and if a 

 soldier were shot by his military superior be- 

 cause he did not obey an order which would 

 have led to a violation of the law of the land, 

 that military superior himself will pay the 

 penalty of murder before the laws of the coun- 

 try for doing it." 



Mr. McMillan: "Would that bring the sol- 

 dier back to life ? " 



Mr. Bayard : " Not in the least. The soldier 

 has his peril for the mistaken act of his supe- 

 rior ; and the superior has his peril in meeting 

 the law which he has defied." 



Mr. McMillan : " Then the Senator will ob- 

 serve the importance of the question presented 

 here: Will you insert in the law 'knowingly 

 violate the provisions of this section'? Will 

 you express the scienter? Will you require 

 that? Or will you permit the principle to ap- 

 ply that from the very performance of an act 

 in violation of it you would presume the un- 

 lawful intent, when the unlawful intent might 

 not exist in fact, because the law does presume 

 from acts in violation of law an intent to vio- 

 late the law ? Will you insert in this section 

 that which will expressly prevent any such 

 construction?" 



Mr. Bayard: "Well, Mr. President. I will 

 follow in respect of this law ? of which I may 

 say I am not the draughtsman, the language 

 and provision of general laws on the same sub- 

 ject that have been on the statute-book for 

 many years, and here I have them before me. 

 I have read one ; I can read other sections ; all 

 of them simply declare that the violation of the 

 act in Question shall be followed by punish- 

 ment. That is all that is declared here." 



Mr. McMillan: "I am not prepared now to 

 give construction to all the acts that are upon 

 the statute-book. I only have to reply to the 

 Senator thus: We are called upon now to en- 

 act a statute ; and if we do so, we ought to 

 . the safeguards in it which should be in- 

 f there are statutes in existence which 

 00 not contain them, they should be immedi- 

 ately repealed or amended." 



Mr Bayard : The Senator will find himself 

 r ery busy in repealing acts, because the lan- 

 guage of this present section is the general 



language of the laws on these subjects. There 

 is no doubt about that. 



" I merely reiterate what I said before, that I 

 regard the declaration of this section as very 

 little more than a truism which I am not pre- 

 pared to hear denied. The assent to it would 

 lead us to an agreement with the House and 

 the passage of this bill without delay. I pro- 

 pose that that should be accomplished. I of- 

 fered an amendment striking from the propo- 

 sition of the House certain language that was 

 considered objectionable by certain gentlemen 

 in the Senate. After that was passed the na- 

 ked proposition was this, that the army of the 

 United States was the creature of the Consti- 

 tution and laws of the United States, that it 

 should not be used except in accordance with 

 the laws of its being, and that he who used it 

 otherwise than the law and the Constitution 

 permitted should be answerable. That was all. 

 That is what the section means. To that I 

 can express no dissent. Whether I should 

 originally have desired to have a reaffirmation 

 of that proposition is a different tiling ; but the 

 other branch of Congress have seen fit to affirm 

 it. I am not to deny it. On the contrary, I 

 give it my hearty assent; and the question is 

 simply, as a practical measure, whether we 

 shall have this bone of contention removed 

 from the opinions of the two Houses, or wheth- 

 er we shall have it with this modification in 

 such manner as will be acceptable to all." 



Mr. Christiancy, of Michigan, said : " What I 

 wish to say is, that all this controversy about 

 the liability of a private soldier is one which 

 does not arise in this case, and the discussion 

 of it is thrown away. If there is anything 

 clear under this bill, it is that it does apply to 

 the President of the United States, who must 

 initiate all orders to the military, and on the 

 other hand that it does not apply to the private 

 soldier. The private soldier certainly does not 

 employ the army of the United States in any 

 instance. The language can not apply to Mm. 

 On the other hand, I do not wholly agree, as 

 at present advised, for I Lave not carefully 

 looked into this matter, with the Senator from 

 Ohio (Mr. Matthews), who holds that the sec- 

 tion as it now stands would apply to nobody 

 but the President of the United States. I think 

 there is great room for holding that it would 

 apply to any officer in command of a post, or 

 in command of five, or ten, or fifteen men. 

 The language is, ' 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,' etc. I think there is great room 

 for contending that the particular officer in 

 command of a detachment might render him- 

 self liable under that language." 



Mr. Conkling, of New York, said : "Would it 

 not include also a marshal, for example, whc 

 summoned any part of the army, that is, of the 

 enlisted men in the army, to act as posse ? " 



Mr. Christiancy: "It is barely possible thnt 

 it might; but, inasmuch as the command ot 



