The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-23

denance OF public opinion.
The Presidents Powers I'm Civil Com
nicts-Duty OF Congress.
Now that the bloody turbulence in the
distracted State of Arkansas is at an end the
horrors which it brought about and the verge
to which it brought us should not be per-
mitted to sink out of sight without some
thing being done by Congress to prevent
the recurrence of such disgraceful scenes.
The most universally approved thing which
President Grant did in these Arkansas
troubles was unquestionably illegal There
was no act of Congress authorizing him to
intervene between the forces of Brooks and
Baxter, before either had applied to him, or he
had recognized either as the Governor of the
State. Assuming that Baxter is Governor,
what right had the President to interpose and
prevent his recovering the rights and exer-
cising the duties of his Office? If Baxter is
the legal Governor he is, by virtue of his
Office, the commander-in-chief of the State
militia, with full power to call it out to ex.
ecute the laws and make his authority re-
spected. Admitting him to be the Governor.
the President had no more warrant of law to
stand between him and the recovery of his
Office than he would have to prevent General
Dix from suppressing riot in this State.
And yet the whole country with hardly
dissenting voice. warmly approved the
use which President Grant made of the fed
eral troops at Little Rock in trying to keep
the combatants apart, Now, if this action was
intrinsically wise, of which there can be
no doubt, Congress ought to pass law
authorizing the President, in future cases,
to do with full warrant Of law what he hui
namely did without law. 1t is not well to
leave so wide door open for excusable illegal
acts. 1t is better that course which is fit in
itself should be also legal, since it is of bad
tendency for executive officers to form the
habit Of transcendng their lawful authority.
The act of 1895 ought to be amended in
other respects, although it undoubtedly con-
fers upon the President great deal more
power than he was willing to exercise in
this emergency. As soon as he received Bax-
ters application or Brooks application he had
full authority to act and to support his action
clothe him with authority to adopt preventive
measures and interpose at an earlier stage than
the law of 1876 permits. The duty of the
United States to protect the States against
invasion and the duty to protect them from
domestic violence are joined together in the
same section of the constitution. But
in the legislation founded on them there is
this remarkable difference, that whereas the
President is authorized to employ the militia
or federal troops not only in actual invasion,
law does not permit him to take any step for
suppressing domestic violence until the vio-
lence has become actual. President Tyler
made this reason for not interfering in
Rhode Island, even after the regular applica-
ton for assistance had been made by Gov
ernor King and the State Legislature But
nobody can doubt that there is as much wis
dom in nipping an instruction in the bud as
in meeting an invasion on the frontier.
Congress has undoubted authority to put the
whole militia Of any disturbed State under the
command of the President. Had Q law per-
hitting this been in existence at the outset
of these Arkansas troubles General Grant
might have taken command of every soldier
in the State, and might have subjected every
militia officer who disobeyed him to be court
martalled under the rules and articles of war.
The constitution declares 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" Unlim-
tied control of the State militia is conferred
upon Congress. It has power ''to provide
for organizing. arming, and disciplining
the militia, and for governing such part of
them as may be employed in the service Of
the United States" There is no limit to the
authority of Congress in calling the militia Of
the States into the federal service or empower
ing the President to do SO by proclamation
If there had been already law in the
statute book at the breaking out of these Ar
kansas disturbances, authorizing the Presi-
dent, when in his judgment domestic violence
was imminent in any State, to call any part
or the whole Of the militia of that State into
the federal service, the exercise of this power
would have stripped both Baxter and Brooks of
oil their soldiers Under such law the Presi-
dent should be forbidden to employ the militia
of the State, or permit it to be employed, for
any other purpose than for preserving the peace
and acting as posse comitatus to the civil au-
thorities. 1t should be his duty to protect the
Legislature and the courts from violence
and terrorism, leaving each to decide
such questions as were properly within its
jurisdiction and permitting no forcible OBJ
struction to the execution of the laws. To
prevent the abuse OF such law as we have
suggested its operations should be confined to
cases Of disputed authority between contest