The Canton advocate. [volume] (Canton, D.T. [S.D.]) 1877-1897, 1880-07-01

functions can they perform if they cannot use
force in executing the process of courts! Must
they call on the nearest court for protection? Must
they rely on him to use requisite compulsion and
to keep the peace while they are soliciting and en-
treating the parties and bystander to allow the law
to take its course! This is
NECESSARY CONSEQUENCE
Of the position assumed. If We indulge in such
impractcable views these and keep on re- -tining
and refining, We shall draw the national govern
ment out of the United States and delegate it to
the District of Columbia, or perhaps to some for
eign soil. We shall bring it back to condition
of greater helplessness than that of the old con-
federation. The idea is based on the starved and
impracticable view Of nature and powers of the
national government 1t must execute the powers
or it is no government 1t must execute on land
as well as on sea, on things rs we'll persons,
and to do this it must necessarily have power to
command obedience, preserve order and to keep
peace; and no person of power in this land has
the right to resist question its authority long
as it keeps within the bounds of its jurisdiction.
L have deemed it fitting and proper to quote
thus largely from all important and elaborate
opinion Of the supreme court, because the bill be-
fore me proceeds upon the construction of the
stitution as to the powers of the national govern
ment, which is in direct conflict with the Judgment
of the highest judicial tribunal of our country.
Under sections of the present law above quoted
officers of the United States are authorized and it
is their duty in case of congressional elections to
keep the peace at the polls and place Of registra-
ton, to arrest Immediately any person who is
guilty of crime against the United States election
laws, and to
PROTECT ALL OFFICERS OF ELECTION
in the performance of their duties and whenever
IN arrest is made to bring the person so arrested
before commissioner judge or court of the United
States for examination of ofenscs alleged against
him. Such special deputy marshals are specially
amnDWpra1 thprafo nv tho marSlnls in WrifiOr
and if forcibly resisted may call to their aid the
by-stande1s or posse comttattls. 1t is made a
crime punishable by fine imprisonment to him
der. assault or otherwise interfere with the mar
shal or his special deputies, or to threaten or at
tempt to do so. If any person appointed such
special deputy marshal has taken the oath of Of
fee, and thereafter neg refuses to fully dis
charge the duties of suoh office he is punishable
not only by removal from office but by fine and
imprisonment. The functions of special deputy
marshals now provided for by law being executive,
they are placed under the authority of a well
known chief executive officer of the courts of the
United States They are in fact, not merely in
name, the deputies of the marshal, and he and his
bondsmen responsible for them. A civil force
for the execution of the law is thus instituted n
accordance with long established and familiar
usage which is simple effective and under a res
ponsible head.
The necessity for a possession of the powers by
appropriate officers will not be called in question
by intelligent citizens who appreciate the import
ance of peaceable, orderly and lawful elections.
Similar powers are conferred and
EXERCIsED UNDER THESE LAWS
with respect to state elections. The executive
officers of the United States under existing laws
have no other or greater power to supervise and
control the conduct of congressional elections than
state executive officers exercise in regard state
elections.
The bill before me changes completely the pres
ent law by substituting for special deputy mar
shas of the existing statutes new officers
hitherto unknown to law and who lack the power,
responsibility and protection as executive officers.
The bill under consideration is rs follows:
BE it enacted, by the senate and house of repre-
sentatives of the United States of America in con-
gress assembled That from and after the passage
of this act the pay of all deputy marshals for
vices in reference to any election shall be 50 for
each day of actual service, and no more.
Sec. 2. That all deputy marshals to serve in ref
erence to any election shall be appointed by the
circuit court of the United States for the district
in which such marshals are to perform their duty
i'll each year, and judges of the several circuit
OPEN THEIR RESPECTIVE COURTS
at any time for that purpose; and in case circuit
courts shall not be open for that purpose at least
ten days prior to registration, # there be one or
if no registration be required then at least ten
days before election the judges of district courts
of the United States are hereby re-
spectively authorized to cause their courts to be
opened for the purpose Of appointing such deputy
marshals, who shall be appointed by said district
courts, and the officers appointed shall be in
equal numbers from different political parties, and
shall be we'll known citizens, of good moral char
acter and actual residents of the voting precincts
in which their duties to be performed, and
shall not be candidates for Office at such elections;
and all laws and parts Of laws inconsistent with
this act are hereby repealed. Provided, that mar
shals of the United States for whom deputies
shall be appointed by the court under this act
shall not be liable for any acts of such deputies"
1t will be observed that deputy marshals pro-
posed by the bill before me are
DISTINCTLY DIFFERENT OFFICERS
from special deputies of the marshal, as such Off
GERS are now provided for in the statutes This bill
does not connect the new officers with the existing
laws relating to special deputy malshals SO rs to
invest the proposed deputy marshals with the
same powers. to impose upon them the same duties
and to give them the same protection by means of
criminal laws. When new officers are created, dis
tinct i'll character and appointed by different au-
thorty although similar in name to the officers
already provided for, such new officers are not
held by similar responsibility to the criminal law,
do not possess the same powers and are not SINH
larly protected unless it is expressly so provided
by legislation. The so-called deputy marzhnls
provided for in this bill will have no executive
head. The marshal can neither appoint nor re-
move them. He cannot control them, and he is
not responsible for them. They will have no au-
thority to call to their aid if resisted, the posse
comitasus. They are protected by no criminal
statutes in the performance of their duties. An
assault upon one of these deputies, with intent to
prevent lawful election, will be no more than an
ordinary
ASSAULT UPON ANY OTHER CITIZEN,
They cannot keep the peace. They cannot make
a 81
ence. What powers they have are confined to the
precincts for which they appointed; the dep
uty marshas of this bill cannot keep the peace,
make arrests hold prisoners take prisoners before
other duty. No oaths of office are required of
them, and they give no bond. They have no
superior who is responsible for then and they are
not punishable for neglect of duty misconduct in
Office
In all these respects this bill makes radical
change between the powers of United States Off
GERS ut national elections and the powers uniform
y possessed and eXcercised by state officers at state
elections. This discrimination against the author
ity of the United States is departure from the
usage of the government, established by precedent
beginning with the earliest statutes the subject
and violates the true principles of the constitution
The supreme court in the decision already referred
to, says: "It is argued that the preservation of
peace and good order in society is not within the
powers confded to the government of the United
States but belongs exclusively to the States.
Here again we are met with the theory that the
government Of the United States does not rest up
on the soil and territory of the country. We think
that this theory is founded on an entire
MIscoNcEpTIoN OF THE NATURE
and powers of that government. We hold it to
be law incontrovcrtible principle that the govern
ment of the United States may by means Of physi-
cal force exercise through its official agents and
execute on every foot of American soil the powers
and functions that belong to it."
This necessarily involves power to command
obedience to its laws and hence power to keep the
peace to that extent. This power to enforce its
laws and execute its functions in all places does
not derogate from the power of the state to ex-
| ecute its laws at the same time and in the same
place. The one does not execute the other, ex-
cept where both cannot be executed at t;.e same
time. In that case the words of the constitution it.
self show which is to yield. This constitution and
all laws which shall be made i'll pursuance thereof
| shall be supreme laws of the land
In conclusion it is proper to say that no objec-
ton would be made to the appointment of officer
to act with reference to elections by the courts Of
the United States and that am in favor Of up
pointing officers to supervise and protect the sec
tions without regard to party. But the bill be-
| fore me, while it recognizes the power and duty