New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-09-12
WHOLE NUMBER 1905.
JUDGE rAFr,s POSITION SUSTAINED.
A First Class Precedent.

-
A First Glass Precedent.
The Washington Star, on the seventh
instant. brought to light an official letter
prepared by Hon. William NJ. Evarts while
serving as Attorney General in the last
year of Andrew Johnson's administration.
As the letter has not yet been published in
escaped the attention of Judge Taft until
his recent circular had been prepared. The
letter was written before the enactment of
the statutes which form the basis of the
recent circular, and had NO reference to
elections. The only divergence from the
circular is upon the subject of the peace.
Mr.. Evarts was considering "the peace" as
ordinarily understood, that broken by COM
mon law offences, ETC., and not that stat
utory peace OF the United States against
which all indictments in Federal courts are
included. The following is Mr.. Evarts' let
ter in full. 1t will be seen that Mr.. Evsrts
entirely concurs with Messrs. Gushing and
Taft in relation to the power of marshals in
reference to the posse:
ATTORNEY GENERALS OFFICE,
August 20. 1868.
Alexander Magruder, ESQ.,, Unied States Mar.
shal, Northern District, st. Augustine, Flor da:
SIR.-YOur letter of the twelfth instant
reached me yesterday and has received an
attentive consideration. Colonel Sprague's
information to you must have been based
upon his own construction of General
Meade's order, lately issued, and not upon
any special instructions from the President
to Colonel Sprague, through General Meade
or otherwise. as no such special instructions
have been issued by the President.
You add: "Under some circumstances I
should be glad to have the aid of the mill
tary, and if practicable would be pleased to
have instructions given to the military to
aid me when necessary. l ask this, as
Colonel Sprague informs me under his in
structions he can not do so."
The desire and request for the " Aid of the
military" under certain circumstances l
sity which may arise that q marshal should
have the means of obtaining the aid and
attendance of more considerable force
than his regular deputies supply for the
execution of legal process in his district.
The twenty-seventh section of the judi
ciary act of 1889 established the Office of
marshal, and names among his duties and
powers tno IoAIOWIuS' Anu 10 eAocuIo
throughout the district oil lawful preoepts
directed to him and issued under the au-
thority of the United States, and he shall
have power to command all necessary as
sistsnce in the execution of his duty, and to
appoint as there may be occasion one or
more deputies" Stat. ., 81.
You will observe from this that the only
measure of the assistance which you have
the power to command is its necessity for
A. o< Int
discreet judgment, under your official Ca
pacity, the law repOses the determination
Of what force each particular necessity re-
Quires. This power of the marshal is
equivalent to that of sheriff, and, with
either, embraces. as resort in necessity,
the whole power of the precinct tcounty or
district) in which the officers authority ex-
tends. In defining this power, Attorney
General Gushing, and, as understand the
subject, correctly says it comprises every
person in the district or county over fit
teen years, whether civilians or not, and in
cluding the military of all denominations,
militia, soldiers, marines, all of whom are
alike bound to obey the commands of a
sheriff or marshal"
While, however, the law gives you this
''power to command all necessary assist
ance," and the military within your dis
trict are not exempt from obligation to
| summons in case of, necessity, you will be
| particular to observe that this high and re-
sponeible authority is given to the marshal
| only in aid OF his duty "tO execute through.
out the district all lawful precepts directed
| to him, and issued under the authority OF
the United States," and only in case Of
necessity for this extraordinary aid. The
military persons obeying the summons Of
the marshal will act in subordination and
l oho1;ouoo to tho n; vii a. ho aho1
in whose aid, in tho execution of process
they are called, and only to the effect of Sc
curing it's execution.
This special duty and authority in the ex
ecuti0n of process issued to you, must TO
be confounded with the duty and authority
of suppressing disorder and preserving TIN
peace, which, under our government, be
longs to the civil authorities of the States
| and not to the civil authorities of th'
United States. Nor is this special duty anl
authority of the marshal, in executing pro
cesses issued to him to be c0nfounded will
the authority and duty of the President o
the United States, in the specific cases o
the constitution, and under the regulation
of the statutes, to protect the States agsins
domestic violence, or with his authorit,
and duty, under special statutes to emplo,
military force in subduing oomeinations il
| resistance to the laws OF the United States
For neither of these duties or authoritiee
shared by the subordinate officers of tn
government, except when and as the sam
may be communicated to them by the Pres
ident.
| Ihave thus called your attention to tn
general considerations bearing upon tn
subject 20 which your letter refers, for tn
purpose of securing due observance of tn
limits of your duty and authority in COZ
nection Herewith. Nothing can be less il
accordance with the nature of our govern
ment, or the disposition of our people tha
frequent and ready resort to military al
in execution of the duties confided to civ
officers. Courage, vigor and intrepidit
are appropriate qualities for the civil Sol
vice which the marshals of the Unite
States are expected to perform, and q reir
forcement Of their power by extraordinar
means is permitted by the law only in O.
tra0rdinary emergencies.
If it shall be thought that any occasion
at any time, exists for instructions to tn
military authorities of the United State
within any of the States in connection wit
the execution of process of courts of th
United States, these instructions will be
accordance with the exlgency then appea
ing.
am, sir. very respectfully, your obed
ent servant, WILLIAM NJ. EVARTS,
! Attorney Genera
Il Consul to Tripoli.
Mr.. Cuthbert Jones, of Louisiana. recent
confirmed by the Senate as consul to TrlpOl
left Washington last night for New Yorl
whence he sails in b few days for his field
operations Mr.. Jones is . young man {
fine ability, and having spent several yeal
in different parts of Europe (part of Il