APPENDIX A.

[Extract from the speech of Hon. H. B. Banning, delivered March 2, 1877, "The Object of Our Army."]

Mr. Speaker, there is a strange confusion in the minds of the people, shared by some eminent officials, as to what are the uses for which our regular Army was created and what the duties and responsibilities of the individual officer or private.

For the functions to be performed by the Army we must look to the "Constitution and the laws of the United States which shall be made in pursuance thereof," which are declared by Article VI of that instrument to be the supreme law of the land."

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We find in section 2 of Article II that

"The President shall be commander-in-chief of the Army and Navy of the United States and of the militia of the several States when called into the actual service of the United States."

But as such commander-in-chief he has no other or further powers than such as may by act of Congress agreeably to the provisions of the Constitution be devolved upon him.

The power to declare war; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions; to provide for organizing, arming, and disciplining the militia, etc., and all other powers connected with the Army and Navy except the single one before quoted are vested in the Congress of the United States. The Army can be used for national purposes to execute the laws of the Union, suppress insurrection, and repel invasions, and also aid the States, under section 4 of Article IV, "to protect each of them against invasion, and on application of the legislature, or of the executive when the legislature can not be convened, against domestic violence." The manner and occasion of such use, however, are not discretionary with the President as commander-in-chief, but are clearly defined by acts of Congress.

In relation to the use of the Army in the aid of the State governments, by the act of February 28, 1795, and March 3, 1807 (section 5297, Revised Statutes, United States), it is provided that

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In case of an insurrection in any State against the government thereof it shall be lawful for the President, on application of the legislature of such State, or of the executive when the legislature can not be convened, to call for such number of the militia of any other State or States which may be applied for as he deems sufficient to suppress such insurrection; or, on like application, to employ for the same purposes such part of the land and naval forces of the United States as he deems necessary."

Section 5300, Revised Statutes, United States (act of February 28, 1795), provides that

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Whenever in the judgment of the President it becomes necessary to use the military forces under this title the President shall forthwith, by proclamation, command the insurgents to disperse and retire peaceably to their respective abodes within a limited time."

The first occasion on which it became necessary to consider the propriety of exercising these most important constitutional and legal functions arose in the year 1842, under the administration of President Tyler, in the case of the Dorr rebellion in Rhode Island. Daniel Webster was then Secretary of State, and matters growing out of the relations between the Federal Government and the several States of the Union were conducted through the State Department. In those days the Attorney General of the United States was not claimed to be, as he now is, the virtual commander-in-chief of the Army. The circumstances of the case briefly stated are as follows:

In 1842 a large majority of the people of Rhode Island, acting outside of the forms of law, established a state government and elected Thomas W. Dorr their governor. On the 4th of April, 1842, Samuel W. King, legal governor of Rhode Island, addressed the President of the United States, stating that "the State of Rhode Island is threatened with domestic violence," that the legislature could not be convened, and calling upon the President

for "the protection which is required by the Constitution of the United States."

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In another letter of the same date addressed to the President, Governor King recited the facts which led him to make the application for Federal assistance and requested that "such precautionary measures may be taken by the Government of the United States as may afford us that protection which the Constitution of the United States requires. The Government of the United States has the power to prevent as well as to defend us from violence. The protection provided by the Constitution of the United States will not be effectual unless such precautionary measures may be taken as are necessary to prevent lawless men from breaking out into violence as well as to protect the State from further violence after it has broken out." President Tyler, in a communication prepared by Daniel Webster, declined to interfere. He said, "For the regulation of my conduct on any interposition which I may be called upon to make between the government of a State and any portion of the citizens who may assail it with domestic violence, or may be in actual insurrection against it, I can only look to the Constitution and laws of the United States, which plainly declare the obligations of the executive department, and leave it no alternative as to the course it shall pursue." After reciting section 4 of Article IV of the Constitution and the acts of 1795 and 1807, before quoted, he said:

"By a careful consideration of the above-recited acts of Congress your excellency will not fail to see that no power is vested in the Executive of the United States to anticipate insurrectionary movements against the government of Rhode Island, so as to sustain the interposition of the military authority; but that there must be an actual insurrection, manifested by lawless assemblages of the people or otherwise, to whom a proclamation may be addressed, and who may be required to betake themselves to their respective abodes."

On the 4th of May, 1842, the legislature of Rhode Island passed resolutions calling upon the President for assistance to suppress the insurrection against the State, and reciting that—

“A portion of the people of this State, for the purpose of subverting the laws and existing government thereof, have framed

a pretended constitution, and for the same unlawful purposes have met in lawless assemblages and elected officers for the future government of this State; and whereas the persons so elected, in violation of law, but in conformity to the said pretended constitution, have, on the 3d day of May instant, organized themselves into executive and legislative departments of government, and under oath assumed the duties and exercise of said powers; and whereas, in order to prevent the due execution of the laws, a strong military force was called out, and did array themselves to protect the said unlawful organization of government and to set at defiance the due enforcement of the laws."

Did the President then interfere? No, sir; he still declined, and in a letter dated May 7, gave the best of reasons for so doing. He says 66 that he has information that leads him to believe that the danger of domestic violence is hourly diminishing.”

"I freely confess," he says

"that I should experience great reluctance in employing the military power of this Government against any portion of the people; but, however painful the duty, I have to assure your excellency that if resistance be made to the execution of the laws of Rhode Island by such force as the civil posse shall be unable to overcome, it will be the duty of this Government to enforce the constitutional guarantee."

On the 9th of May, 1842, the President addressed Governor King of Rhode Island a letter, in which he counseled peaceful

measures.

"Why urge matters," he says—

"to an extremity? If you succeed by the bayonet you succeed against your own fellow-citizens, and by the shedding of kindred blood. * * * A resort to force will engender for years to come feelings of animosity."

On the 25th of May Governor King addressed the President, stating that the Dorr government, in addition to companies of men in Rhode Island, was organizing bands of men in Massachusetts, Connecticut, and New York. Therefore Governor King asked for the interposition of the Federal authority, and that the President might place a sufficient body of troops in the State, "to be subject to the requisition of the executive of this State

whenever, in his opinion, the exigency of the case should require their assistance.'

This request the President declined, in a letter dated the 28th of May, in which he said, "should the necessity of the case require the interposition of the authority of the United States, it will be rendered in the manner prescribed by the laws."

On the 29th of June the President of the United States being informed "that the difficulties in Rhode Island have arrived at a crisis" which require the interposition of Federal authority in support of the State, directed the Secretary of War to proceed to Rhode Island and in the event of the necessary requisition being made by the governor of Rhode Island to issue a proclamation prepared by Daniel Webster, Secretary of State, and signed by Webster and the President, "commanding all insurgents and all persons connected with the insurrection to disband." This proclamation, however, was never issued, the Dorr rebellion having been suppressed by the State authorities.

In compliance with a resolution of the House of Representatives of the 23d of March, 1844 (Executive Document No. 225), the President informed the House "that the Executive did not deem it his duty to interfere with the naval and military forces of the United States in the late disturbance in Rhode Island; that no orders were issued for the employment of troops in that State except to strengthen the garrison at Fort Adams; that no orders were given to any officer or officers of the Army or Navy to report themselves to the charter government; that the Executive was at no time convinced that the casus fœderis had arisen which required the interposition of the military or naval power."

Taking strong ground against the interference of the Executive in State questions, he said:

"Actuated by selfish motives he (the Executive) might become the great agitator, fomenting assault upon the State constitutions and declaring the majority of to-day to be the minority of tomorrow, and the minority in its turn the majority, before whose decrees the established order of things in the State should be subverted. Revolution, civil commotion, and bloodshed would be the inevitable consequences. The provision in the Constitution intended for the security of the States would thus be turned into the instrument of their destruction; the President would

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