The republic. [volume] (Washington [D.C.]) 1849-1853, 1851-03-07
Report OF the Committee ON the Judiciary
In tho United States senate.

Report OF the Committee ON the Judiciary
I'm the United States senate,
ACCOMPANIED BY THE MISoRrrv REPORT or THE
SAME COMMITTEE.
Mr.. Bradbury. from the Committee on tho Ju-
dietary, TO which was referred the message of the
President OF the United States in answer to rcso-
luton OF the Senate calling for information in
lation to the recent disturbance at Boston, made
the following report;
The committee being called upon near the close
OF the session TO consider the subject involved in
the message Of tho President deem it proper at this
time to confine the expression Of their opinion TO
one or two points presented in that document.
That the Executive officers Of the Government
should possess full and adequate power to enforce
the execution of the lava will not be questioned;
and the committee Of opinion that they possess
such power now, without the aid Of further iegis.
lation.
In the execution of judicial process. the marshals
and their deputies have authority to call to their
assistance whenever il ia the POSSE conf
tafus within their jurisdiction, and. to adopt the
language of the President, il Is supposed not to
be doubtful that all citizens, whether enrolled in the
militia or not, may be summoned as members"
and that il 10 their duty to obey such summons.
The committee not aware Of any reason that
exempts the citizens who constitute the military
and naval forces Of the United States from like liza
bilities to this duty. Because men are soldiers
Sailors they not to be citizens; they possess
all the rights and are bound by all the duties OF
other citizens and while acting under the call
and direction Of the civil authority, they may act
with more efficiency and without objection in nm
organized form, under appropriate subordinate
command.
The Constitution of the United States and the
laws Of Congress passed in pursuance thereof be-
ing paramount to State legislation, no State en-
actments in conflict with them can nullify them or
exonerate the citizen from his duty to render them
obedience.
When occasions arise (Which must necessarily
H. -.
to maintain the laws, the President is authorized
by the acts Of Congress of 18th February, 1895,
and March Sd, 1907, to call forth and employ, in
the manner prescribed by these acts, the militia of
United States, TO suppress Instructions and TO
force the due execution Of the laws
review of the powers possessed by the Execu-
tive by virtue of existing lava, to which we have
herein alluded, and the experience of the past,
have led the committee to the opinion that further
Legislation s not essential to enable the President to
discharge, as we have confidence he is disposed to
discharge with fidelity, his high constitutional
duty, to see that the laws are faithfully executed
The committee, therefore, deem it inexpedient to
recommend at this time further legislation /; and
ask to be discharged from the further consideration
of the subject.
Report Of the Minority by Mr.. Butler.
Mr. Butler, from the same committee, submit
ted the following minority report:
In submitting my views on the message Of the
President referred to the Judiciary Committee, it
is not my purpose to express my dissent from the
general and unqualified conclusion OF the majority
Of the committee, to wit, that 1t is unnecessary at
this time, by further legislation, to give the Pres
dent power the militia and military forces of
the Government for the purpose Of suppressng in.
surrectons and combinations to obstruct the execu-
ton of the laws.
There are some subjects of the message prescnt-
ed to the consideration Of Congress, and which ad-
dress themselves specially to the consideration of
the committee, upon which feel it a duty to ex-
press an opinion, lest by silence there might be
tacit recognition of of the assumptions, and an
appreciation Of some Of the recommendations of the
message.
Previously to the act of 1907, it seems to have
been the implied understanding OF all tho depart
ments Of the Government that the President was
confined to the militia "to suppress insurrections
against the State government and to suppress CON-
binatons against the laws of the United States''
The act of 1875 indicates the occasions and pre-
scribes the manner in which the militia shall be
called out and employed. The President cannot
order outthe militia to suppress against
the Sta Government without being called on to do
30 by the Legislative Executive authority of tho
State concerned.
United States, il is the duty Of the President to
Judge of the occasion for calling out the militia.
On all occasions for calling out and employing the
militia, it was made the duty of the President, by
the act referred to, to issue his proclamation
warning to the employment Of force. This provi-
sion was founded in usage, aad has had the sane
ton of time, trial, and experience. 1t 10 but the
warming voice of forbcaring Government There
might be some occasions when the interval between
such warning and the actual employment of force
might be of some duration. Other occasions might
be such as to require the force to follow in quick
succession to the warning of proclamation. The
order to call out the militia and the proclamation
might emanate at tho same time.
It seems to have been in contemplation by tho act
of 1875 to put the disposal Of the President quasi
military posse comtafus of citizen soldiers to main
tain the dominion Of the laws, in which they had
the interest Of citizens. 1t was to make Of one
class Of citizens to bring another to of Justice
and proper submission TO the laws. approve its
wisdom. An insurrection would be much more
easily quelled by tho array Of neghbors and fellow
citizens than by the employment of trained and
organized army, whose only influence would be the
mightbe employed in the first case, whilst tho other
might only be strong enough to provoke collision,
and end in blood. Whatever might be the views
of our ancestors, it is certain that until 1907 the
militia the only force put at the disposal of the
President to suppress instruction, &c.
The act Of 1907 is in these words: "That, in
cases of instruction or obstruction to the laws,
either of the United States or Of any individual
State or Territory, where it ia lawful for the Pres
dcnt Of the United States to call forth the mtia
for suppressing such instruction or causing the
laws to be duly executed, it shall be lawful for
him to employ for the same purpose such part of
the land and naval force as shall be necessary,
hauing first obse,oed all the rerequistes Of the Ia,o
in other respects''
So far as II regards the employment Of the army
and naval force, the President maintains that he is
subject to no pre- requisites of the act referred to-
but they are absolutely at his command for the
purposes indicated.
The words of the President are: Congress, not
probably adverting to the difference between the
militia and the regular army by the act of March
3D., 1907, authorized the President to the land
and naval force of the United States for the
purpose for which he might call forth the militia,
and subject to the same proclamation. But the
power Of the President under tho Constitution,
commander ofthc army and navy, is general, and
his duty to see the laws executed is general and
strued as eyincing any disposition in Congress to
limit or restrain any Of his constitutional author
iy." The import of which is, that tho President
may use tho army and navy as he may think pro-