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WAR DEPARTMENT.

Document No. 64.

OFFICE OF THE JUDGE-ADVOCATE GENERAL.

Res. Sept 20,1898.

THE USE OF THE ARMY IN AID OF THE CIVIL POWER.

By the use of the Army in aid of the civil power is here meant its use under some power granted by the Constitution of the United States, either directly or through the medium of legislation. “War powers, independent of the Constitution, whatever they may be, and whether legislative or executive, are no part of this subject. The use here spoken of has reference to the occasions for the employment of the Army, that is, to the purposes for which it may be used, and not to what it may do in carrying out the use.

The occasions had in view are those of resistance to the law not amounting to war, and the subject to which these observations will be more especially addressed is the employment of the Army in executing the laws of the United States and in protecting their instrumentalities of government against unlawful interference.

The Army Appropriation Act of June 18, 1878, contained the following provision:

“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, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of

1 The North American Review for November, 1896, publishes the writer's views on what constitutes the justification of the war power known as “martial law.” The position is there taken that martial law is defensible only as an exercise of executive military power founded in actual necessity, thus disagreeing with the view, sometimes advanced, that it is within the power of Congress to authorize it.

said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment."

From June 30th until November 21st, 1877, the Army of the United States was maintained without any appropriation, the two Houses of Congress having failed to agree. It would be foreign to the purpose of these remarks to comment on this significant fact in our constitutional history, but the proceedings in Congress which led to the failure of the Army Appropriation Act at the second session of the Forty-fourth Congress, and those which resulted in the above legislation, are part of the history of the subject under consideration.

On the 22d of January, 1877, the President, in response to a resolution of the House of Representatives, made the following communication: “To the HOUSE OF REPRESENTATIVES:

“On the 9th day of December, 1876, the following resolution of the House of Representatives was received, viz:

Resolved, That the President be requested, if not incompatible with the public interest, to transmit to this House copies of any and all orders or directions emanating from him or from either of the Executive Departments of the Government to any military commander or civil officer, with reference to the service of the Army, or any portion thereof, in the States of Virginia, South Carolina, Louisiana, and Florida, since the 1st of August last, together with reports, by telegraph or otherwise, from either or any of said military commanders or civil officers.'

“It was immediately, or soon thereafter, referred to the Secretary of War and the Attorney General, the custodians of all retained copies of 'orders or directions' given by the Executive Department of the Government covered by the above inquiry, together with all information upon which such 'orders or directions' were given.

“The information, it will be observed, is voluminous, and, with the limited clerical force in the Department of Justice, has consumed the time up to the present. Many of the communications accompanying this have been already made public in connection with messages heretofore sent to Congress. This class of information includes the important documents received from the governor of South Carolina, and sent to Congress with my message on the subject of the Hamburgh massacre; also the documents accompanying my response to the resolution of the House of Representatives in regard to the soldiers stationed at Petersburgh.

“There have also come to me and to the Department of Justice, from time to time, other earnest written communications from persons holding public trusts and from others residing in the South, some of which I append hereto as bearing upon the precarious condition of the public peace in those States. These communications I have reason to regard as made by respectable and responsible men. Many of them deprecate the publication of their names as involving danger to them personally.

“The reports heretofore made by committees of Congress of the results of their inquiries in Mississippi and in Louisiana, and the newspapers of several States recommending the Mississippi plan,' have also furnished important data for estimating the danger to the public peace and order in those States.

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