CONGRESS, UNITED STATES. 



the military officer must be given before the 

 soldiers can be used, it is possible it might not. 

 Upon that I should not like now to give a posi- 

 tive opinion." 



Mr. Conkling: "Is even that true? Is it 

 true that the command of an officer is neces- 

 sary to justify or require citizens, although 

 they may be soldiers, when summoned by the 

 proper officer, the marshal for example, to act 

 as a posse comitatus ? I think the very reverse 

 was held in the Philadelphia cases ; the very 

 reverse has been held in England continually 

 since very long before the Senator or I knew 

 much about judicial proceedings." 



Mr. Christiancy: "The Senator may be en- 

 tirely right upon that. That is a point which 

 I had not brought my mind to consider at all, 

 and therefore I leave that to him. But I wish 

 to say something more upon the injustice of 

 applying this law fixing severe penalties to sub- 

 ordinate officers. It does not apply, as I have 

 said, to privates, but to subordinate officers. 

 Here is an officer in command of twenty men. 

 Say he is a second lieutenant, if you please. 

 He receives an order which has come down 

 from the President of the United States by the 

 ordinary routine, through all his superior of- 

 ficers. It is regular on its face. He is placed 

 then in a position, according to the Senator 

 from Delaware, that on one side if he refuses 

 to obey that order he is liable to court-martial 

 and to severe penalties, even to the loss of life ; 

 on the other, if the Senator from Delaware is 

 right, he may be equally liable under this act 

 for having obeyed the order. There is no jus- 

 tice in a proposition of this kind, whatever 

 logic there may be in it; and the common 

 sense of mankind must condemn it." 



The Presiding Officer : " The question is on 

 the amendment of the Committee on Appro- 

 priations to strike out the section as amended." 



Mr. Conkling: "Mr. President, this is an 

 example, peculiar perhaps, but not solitary, 

 of a question being presented the answer to 

 which might be understood as affirming or de- 

 nying the truth of the statement made, and in 

 which that supposition would be erroneous as 

 reflecting the intention of those giving the 

 vote. To state myself more clearly, I will say- 

 that I should be sorry to seem to affirm dis- 

 belief in or disrespect for the import of this 

 section. As it is amended, although I think 

 the verbiage might be improved by other 

 changes, on an appropriate bill, at the proper 

 time, in a proper manner, implying as it then 

 would nothing beyond its terms, I should vote 

 tor it. I can not conceive that the army or any 

 other instrumentality or representative of law 

 and order should ever in any contingency be 

 employed except in observance and obedience 

 of constitutional and statutory authority ; and 

 yet I can not read this language, I can not hear 

 my name called propounding to me the ques- 

 tion how I vote upon it, without remembering 

 and appreciating the implication, I might say 

 the imputation, intended by it. 



"It is designed, I think I may say and if 

 that be not parliamentary because imputing 

 motive, I will say adapted to make those 

 who vote for it put a cognovit on the record, 

 to make them plead in substance that things 

 have been done in derogation of this principle, 

 that they so admit that they regret it, and that 

 they affirm by their votes that the time has 

 come when a disapproval ought to be re- 

 corded. 



" Mr. President, I am not sure that some- 

 where, at some time, some man in the army 

 and I suppose every unit is a part of the army 

 has not done that which I wish he had not 

 done. I will not stop to deny, or inquire 

 whether I could truly deny, that any part of 

 the army has recently done that which is rep- 

 rehensible. To vote for the provision now 

 would, however, imply that some special occa- 

 sion in this regard has arisen, or that there is 

 something in the present constitution of the 

 Government alarming in this respect. I shall 

 not be suspected, Mr. President, of being too 

 partial to the present national Administration. 

 I am not credited with friendship for it ; in- 

 deed, I am not sure that I have credit for a 

 wish to judge it impartially or justly. I may be 

 permitted to say, however, that the present Ad- 

 ministration and I speak of both its head and 

 of all its components has never to my knowl- 

 edge given evidence of any intention so unob- 

 servant of the improper use of the army as to 

 demand from any Senator a penal statute by 

 way of menace. If the head of any adminis- 

 tration in ancient or in modern times has so 

 conducted himself as to avoid reasonable sus- 

 picion of his intention to do that which this 

 section denounces, I think I may say the head 

 of the present Administration has so conducted 

 himself ; and therefore I am not willing to vote 

 even for truisms, if they be such, which seem 

 to imply that the recent past, or the present, 

 or the visible future have in them that which 

 summons Congress to its feet to invent new 

 and heavier denunciations or penalties against 

 those who attempt to trample the Constitution 

 and the laws under foot by the employment of 

 military force. 



"I hope, Mr. President, that no Chief Ma- 

 gistrate, no commander of the army and navy, 

 will ever be so perverted as to take it into his 

 head that he has a right to use either arm 

 of the service except as the Constitution and 

 laws permit. When any Chief Magistrate ever 

 does take that in his head, if at that time I 

 have any position of power or responsibility, I 

 will surely vote to chastise such an intention 

 if executed by an act ; but I do not feel bound, 

 in the absence of any summons in this regard, 

 to put on the statute-book such a denuncia- 

 tion." 



The Presiding Officer : " The Secretary will 

 call the roll on the motion to strike out." 



The Secretary proceeded to call the roll, and 

 the result was announced as follows : 



YEAS Messrs. Allison, Anthony, Elaine, Booth, 



