The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-10-17

tless persons, so specially appointed, are |
authorized to summon the posse conitatus, or 1
the land and naval forces of the United
States or the militia, to aid In the service Of
the warrants. There is also q special provi-
sion which authorizes the President to 'em-
ploy such part OF the land or naval forces Of
Il United States, or of the militia, as shall
be necessary to aid in the execution of Judi
cial process under this act" But from the
beginning to the end of this law there is not
a single provision which places the marshal,
either as such. or as special appointee of the
commissioners, in any other relation to the
execution or enforcement Of the law than
that of an executive officer to serve q war
rant; nor can he of his own authority or
under any deputed authority, use a
military force for any purpose but to aid in
the execution of judicial process. Neither
can the President himself use military force
to secure an observance of the law or to pre-
vent offenses under it.; but he can use such
force only Sin the executionof judicial pro-
cess under this act." When, therefore, Mar
sbal Gregory assumed that it was his ''duty
to take cognizance of 'the offense (of OBJ
struoting voters) and see to the enforcement
of the law, and in the discharge of that duty,
although he held no judicial process, to march
a company of United States marines to tho
polls, he assumed function not CONFER ed
? upon him by the act of May 81, and one
totally without any warrant of law unless he
could derive it from the act of July II.
This last statute is the Naturalization law
The only provision in it relating to marshals
is the sixth section, which reads as follows
'Section g. And be 1t further enacted, That in any
city having upwards OF twenty thousand inhabitants
it thall be lawful for the marshal OF the United
appoint as many special depaties as may be neces-
ssry to preserve order at any election at which
Renresentaliyes in Congress are to be chosen; aud
said
order such electons and to arrest for any oense
or breach OF the peace committed in their view"
Now, whether these Especial deputies" are
or are not authorized under the language
''to pre- serve order at such elections and to
arrest for any breach of the peace committed
in their view, to arrest without process for
offenses created by the act of May 81, is a
| good deal more than doubtful. Under the
ordinary rule for constituting and applying diff
ferent statutes on the same subject, especially
| those passed at the same session, there would
be no presumption which would exclude the
necessity for process, especially when it is con-
sidered that the marshal himself is strictly
| confined by the earlier law to the duty OF
! executing process. But if we suppose thai
it was the intention of Congress to create o
strange kind of special election police autho
| rived to arrest without warrant for any
offense or breach of the peace committed in
their view, leaving them to judge what is an
offense or breach of the peace, and not re-
ferring at all to the offenses denounced by
the act of May 81, how did Marshal Gregory
| get the authority to employ military force
in aid of the deputies? In the frst place
after he has appointed these Especial depu
ties" his relation to them is terminated. Ht
himself has no authority to do anything bu
to serve process, under the act of MAY
81; and even for that he cannot EN-
ploy a military force unless specially
authorized to do SO by the commission
issuing the warrant or by the President Tht
''spe cial deputies, who are to look after tn,
peace at the polls and to arrest for offenset
committed in their view, cannot call for
military force, for the law of July Ia doe
not provide them with one, nor does it pro
vide one for the marshal in the matter o.
keeping the peace or of making summar,
arrests. There can be no presumption tina
special constables are authorized to call oat
military force, and every presumption an(
every rule of construction must be against it
We hold it, therefore, to be clear that il
employing a military force. either to euforc
the act of May 81 or to execute the act o
July IA, Mr.. Gregory acted without shadow
of statute authority; and there is, therefore
nothing to shield him from an indictmen
under the Pennsylvania law which prohibit
the placing of United States troops at tn
polls, if the Grand Jury of Philadelphi
| county SnaJl see III TO lnulcC nun. we ais
hold it to have been sef-evident absurdit
on the part of this marshal when he assumes
that it was his duty to see to the enforcement
of the law of May 81 in removing any oh
stIuction that existed to any ones voting 70
neither statute has clothed him with any sue
authority. Under the act of July IA he ha
no function but to appoint certain ''specia
deputies, whose duties are those of specia
constables; but he himself is not charge
| &l>ai,. fl,a;,
We suppose that Marshal Sharpe has goo
legal advisers; at any rate, he ought to have
We recommend him, before he ''calls fo
bayonets' to be used at any election i
New York, to take care that he has th
responsible opinions of able counsel VIII
will be too wise and disinterested to lead hir
into error.