Following the nation-wide riots in 1877, Congress debates appropriating money for the Army. Rep. William Kimmel (D., Maryland) argues for funding the militia, Rep. Herman L. Humphrey (R., Wisconson) for funding the Army.
The dread of a standing army so distinctly and constantly apparent throughout the history of the colonies and the confederation, from 1775 to 1789, was not allayed by the adoption of the Constitution. The establishment of an army, however small, met with constant and determined opposition.
Scranton, Pennsylvania—The Mayor’s Posse Firing on the Rioters.
PROCEEDINGS AND DEBATES
HOUSE OF REPRESENTATIVES.
MONDAY, May 20, 1878.
(Continued from Pt. 1.—Mr. Kimmel Continues.)
OPPOSITION IN CONGRESS TO A STANDING ARMY.
The dread of a standing army so distinctly and constantly apparent throughout the history of the colonies and the confederation, from 1775 to 1789, was not allayed by the adoption of the Constitution. The establishment of an army, however small, met with constant and determined opposition. The purpose for which the small army of the earlier period was raised is always most carefully set forth. (Annals of Congress and American State Papers.)
August 10, 1789, six months after his inauguration, President Washington, in his message to the Senate, said:
I have directed a statement of the troops in the service of the United States to be laid before you for your information. These troops were raised by virtue of the resolves of Congress of October 10, 1755, and October 3, 1787, in Order to protect the frontiers from the depredations of hostile Indiana—1 American State Papers, page 5.
This Army consisted of 840 men.
Congress passed an act regulating the military establishment of the United States, approved April 30, 1790, section 1 of which act raised the Army to 1,216 non-commissioned officers, privates, and musicians, and section 15 reads:
For the purpose of aiding the troops now in service, or to be raised by this act, in protecting the inhabitants of the frontiers of the United States-Annals of Congress. 1789-1791, First Congress, volume 11, pages 2282 and 2283.
Congress passed an act for raising and adding another regiment to the military establishment of the United States and for making further provision for the protection of the frontier, of which act section 1 enacts that there shall be raised an additional regiment of infantry, which, exclusive of commissioned officers, shall consist of 912 non-commissioned officers, privates, and musicians. (See Annals of Congress, 1789—l791, First Congress, volume 2, page 2415.)
According to the American State Papers, 1807, volume 1, page 223, the total force of the Army was 2,418. By the same authority, 1810, volume 1, page 251, the total force of the Army was 4,189.
On the motion to strike out the second section of the bill, which contemplated the raising of four additional regiments, the debates exhibit vigorous opposition. (See Annals of Congress: Protection of the frontiers, 1792, Second Congress, page 337.)
Page 673, Mr. Steel, of North Carolina, said:
He was certain neither the secretary nor any other person could account rationally for the occasion of such establishment; . . . neither was it contemplated in the Constitution of the United States. Yet it has, in the short space three or four years been imposing on the country burdens which the people have at length expressed their abhorrence of. It has been increased from $437,000 in 1789 to the extravagant demand now required of $1,171,719, and $50,000 contingencies for the support of 1793.
Page 765, Mr. Parker said:
He always abhorred the idea of keeping up standing armies in this country.
Mr. Giles objected to the retention of a major-general, (Anthony Wayne,) saying:
It would be the commencement of sinecures in the military department—Acts of Congress, 1796, Fourth Congress, first session, page 1420.
In 1795 Mr. Madison moved an amendment to the act for raising a legion:
That these troops should be employed only for the protection of the frontier.
Mr. Randolph said :
The most popular act would be to put down the Army of the United States and arm the militia—Annals of Congress, 1809, Eleventh Congress, part 1, page 61.
Mr. Potter, (Rhode Island,) speaking of the Army, said:
Give them power and they will generally go to the extent of it, if not abuse it—Annals of Congress, 1810, Eleventh Congress, part 2, page 1590.
Thus, sir, it will be seen the dread of this Army found expression in Congress as late as 1810. After this period either the supineness of the people or their confidence in their strength seems to have made them indifferent to its existence. Later events demonstrate how rational was the dread of the fathers, and admonish us that “the price of liberty is eternal Vigilance.”
THE STANDING ARMY—ITS ORIGIN, GROWTH, AND STRENGTH AT PERIODS STATED—AND THE SUBSTITUTION OF THE ARMY FOR THE MILITIA.
Now, sir, I propose to exhibit the origin, growth, and strength of the standing army and the gradual substitution of the Army for the militia despite the dread, detestation, and warning of the fathers:
[From the Annals of Congress]
1789.—The Army of the United States consisted of 840 men. Cost $137,000.
1790.-Tho Army was increased to 1,216 men, &c.
1791.-One regiment was added, 912 men, &c. Cost $1,171,719. 1794.-0ne regiment of artillerists and engineers was added, 992 men, &c.
1794 -Total army, 3,120 men, &c.
1795.-Alll former acts repealed and an act passed to increase the Army to 5,793 of all arms.
1796.-An act reorganized the Army so that it consisted of 3,690 men of all arms.
1798.—An act added 744 men, &c., making total strength 4,364 men, &c.
1800.—An act authorizing the President to reduce the Army.
The above was the authorized strength of the Army at the period stated.
[From the American State Papers.]
Page 48.—From 1802 to 1808, inclusive. the average strength of the Army was 2,796 men and non-commissioned officers.
The average cost of the Army for the same period was $798,194.98.
The cost per men, including officers, was, $292.80.
Page 46.—Aversge strength of the Army, including officers. non-commissioned officers, musicians, and privates, during the three years 1809, 1810, and 1811 was 6,009.
Average cost of the Army for the same period was $2,301,621.48.
Annual expense per man, including officers. was $183.00.
[From Reports of the Secretary of War.]
1844.—Strength of the Army, 8,573; cost. _________.
1859.—Strength of the Army available, 14,000; cost, $13,098,725.
1877-Strength of the Army, 25.000; cost. #11,597,270.68.
1877—Annual cost per man, including officers, $4,263.80.
MILITIA INTENDED AS A SUBSTITUTE FOR A STANDING ARMY—NOW IT HAS DECAYED FROM NEGLECT.
We have seen, sir, how great was the hope of the fathers that militia, “the natural defense of a free state,” would save the coiling from the dangers of a standing army, “the bane of liberty.” And we have seen how baseless was their hope; how, as a peace establishment, it was destroyed by neglect within twenty years after the adoption of the Constitution, so far at least as a national institution; how all the influence of Washington could not arouse the people to sustain “this palladium of their liberty;” how the well-digested plan of General Knox, Washington’s able Secretary, failed in peace though effective in war. We have seen, sir, how Congress has chosen to forget the existence of the militia, so that the law remains to-day as it was enacted in 1792. The law provides now, as it provided then, that the militiamen, officer and private, shall supply all things necessary to the service, his horse and accouterments; the officer shall have now, as in 1792, “a hanger and a spontoon,” and the private shall have a flintlock and two spare flints,” and for the reimbursement to the militiamen for the expense of this outlay Congress appropriates now, as in 1808, the sum of $200,000 each year—about two and a half cents apiece for each militiamen, officer and man: in the United States of America, for discipline assembled; most certainly not a very extravagant allowance. Two hundred thousand dollars a year for the militia; $31,597,270 a year for a standing army. Two and a half cents a year for a militiamen, “the natural defense of a free state,” $1,263 a year for a regular soldier, “the bane of liberty.” Sir, I will not weaken this statement by a word of comment.
STANDING ARMY NOT TO BE EMPLOYED FOR THE ENFORCEMENT OF THE LAW.
Throughout the entire discussion of the standing army, it is clear that the American spirit would not tolerate the possibility of employing that army for the execution of the laws. The opinion of the times was distinctly and unanimously against it. This opinion is embodied in the Constitution. It is evident in the grouping of the powers conferred on Congress. The war power is given in article 1, section 8, in clauses numbered 11, 12, 13 and 14. These are:
11. To declare war, grant letters of marque and make rules concerning captures on land and water;
12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
13. To provide and maintain a Navy; and
14. To make rules for the government and regulation of the land and naval forces.
This is too plain for argument. In these four clauses is conferred the power to declare war and the power to obtain the means for carrying on the war. Then another power is given, separate and distinct from the war power. The power to execute the laws, suppress insurrections, and repel invasions is given in clauses 15 and 16. These are:
15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;
16. 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, reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline, prescribed by Congress.
In these two clauses is conferred the power to execute the laws of the Union, suppress insurrections, and repel invasions, and the means for exercising this power. These two powers are as distinct as are the means to be employed for the exercise of them, the Army for defense against external foes, the militia for the suppression of internal resistance, the Army to be created by Congress, because war is a subject of national jurisdiction only; the militia to be created jointly by Congress and the States, because the execution of the laws of the Union and the suppression of insurrections may involve questions of disputed jurisdiction. By these provisions the people were to be protected from interference by such army as Congress might maintain. By this cautious adjustment of these balances did the fathers not only provide against intervention by the standing army, if such should exist, in the internal government of the country, but they also provided that the General Government should, by organizing, arming, and disciplining the militia, supply to the States the uniform means of resisting its own aggressions.
That this is the true interpretation of the Constitution is evident not only by the declarations, acts, and circumstances of the period of its formation, but also by the act and by the manner of the act of President Washington in the suppression of the only insurrection which occurred, or which had threatened to occur, during the first half century after the adoption of the Constitution.
In 1794 inhabitants of Western Pennsylvania resisted the collection of the tax on whisky. The United States court of that district was powerless to execute the law and appealed to the United States Government for aid. President Washington, before resorting to force, issued his proclamation commanding the insurgents to disperse. The proclamation failing of effect, the President, in obedience to the Constitution and the law made in pursuance thereof, called forth the militia of Pennsylvania. and the adjoining States for the execution of the laws of the Union and the suppression of the insurrection. After the restoration of order Congress manifested its approval of the acts of the President and of the militia by passing the following resolution:
Resolved unanimously, That the thanks of this House be given to the gallant officers and privates of the militia of the States of New Jersey, Pennsylvania, Maryland, and Virginia, who on the late call of the President rallied around the standard of the laws, and in the prompt and most severe service which they encountered bore the most illustrious testimony to the value of the Constitution and the blessings of internal peace and order.
The language of this resolution embodies the whole spirit of the Constitution on this subject. It thanks the militia who rallied around the standard of the laws, and bore illustrious testimony to the value of the Constitution.
Here, sir, is testimony, in letters of living light, to the correctness of this interpretation of the Constitution, by many of the very men who framed that unequaled instrument, given within six years after its adoption, expressive of their satisfaction with its adaptability to the demands of that critical emergency, the first trial of its strength. The instrument, moved by its constructors, proved the harmony of its powers by the unity of its strength.
RÉSUMÉ AS TO THE INTENTION OF THE FATHERS IN REGARD TO THE STANDING ARMY AND THE MILITIA.
This evidence establishes—
First. That the fathers knew that history recorded the fact that standing armies destroy the liberties of the people.
Second. That dread and detestation of standing armies were the most prominent characteristics of the colonial and revolutionary period
Third. That this dread of standing armies found expression in every governmental instrument touching this subject recorded by them.
Fourth. That a standing army was not intended by the framers of the Constitution, and that, if it existed under it, it was to be only in the last resort.
Fifth. That a standing army, if it existed, was to be used only for war, the defense of the frontier against the incursions of Indians, and for manning the forts.
Sixth. That a standing army should not be used for the execution of the laws, nor for suppressing insurrection.
Seventh. That the fathers relied on the militia as the natural defense of a free state, and that they so declared in every governmental paper relating to the subject put forth by them.
Eighth. That they intended the militia to be used as a substitute for a standing army.
Ninth. That they intended the militia should be employed to execute the laws of the Union and to suppress insurrection.
Tenth. That the militia, as a national institution, has been destroyed by neglect.
Eleventh. That a standing army has been raised on the ruins of the militia.
These, sir, are startling facts. Would it not be well now, during this lull in the storm of party strife, for the representatives of the people to ponder them deeply, and inquire whether there is not danger, immense and imminent, in this heedless disregard of the warnings of the fathers and the mandates of the Constitution they framed?
The standing Army as now employed is violative of the Constitution and of the law, which directs the manner of the employment of it. Notwithstanding this plain intent of the Constitution, the standing Army has been largely employed in all sorts of uses, at the request of all sorts of people, without regard even to such law as has on enacted for the direction of its employment in these unconstitutional uses. Generals commanding military departments, north, south, and east, report the employment, hundreds of times, of hundreds of detachments of the standing Army in the suppression of strikes, in the execution of the local laws, in the collection of the revenue, the arrest of offenders, &c., at the request of governors, sheriff’s, and other local State civil authorities and United States attorneys, marshals, assistant marshals, and internal-revenue officers, in such open and flagrant violation of law that these generals suggest the enactment of such laws as will define the duties of the soldiery; in evidence of which I now read to the House the following extracts from the report of the General of the Army and of the generals of departments:
New York, October 8, 1870.
General McDowell, commanding the Department of the East, reports as follows: “On 3d December, in compliance with instructions from the Adjutant-General’s Office, Major Abbot, with two companies of engineers, troops from Willet’s Point; Major C. Boat, with two companies from Fort Hamilton, one from Fort Wadsworth, and one from Fort Schuyler and Lieutenant-Colonel Kiddoo, with four companies from Fort Columbus, all under command of Colonel Vogdes, First United States Artillery, proceeded to Brooklyn to assist Colonel Pleasanton, collector of internal revenue, in the execution of his duties.”
Louisville, KENTUCKY, October 26, 1871.
General Terry, commanding Department of the South, reports as follows: “More than two hundred temporary detachments have been made from garrisons of posts for the purpose of aiding civil officers. Those detachments have been made upon the request of governors of States, sheriffs, and other local State civil authorities and United States district attorneys, marshals, and officers of the Internal Revenue department.”
Detroit, MICHIGAN, September 27. 1872.
General Crook reports as follows: “ in May last fifteen hundred of these miners in the vicinity of Houghton combined in a strike; they became nearly all armed and at last not only defied the civil authorities but rescued prisoners, disarmed the sheriff’s posse, and threatened the peaceably disposed. The governor of the State presenting to me official proof of this state of things, received by telegraph May 11, made very urgent application for military assistance. The emergency appearing great, I determined to give the immediate aid of a military posse.”
Louisville, KENTUCKY, October 1, 1872.
General Terry reports one hundred and sixty temporary detachments as in 1871, for these purposes.
Louisville, KENTUCKY, September 30, 1874.
General Terry reports forty-two temporary detachments to aid revenue officers.
Louisville, KENTUCKY, October 19, 1875.
General McDowell reports thirty-seven detachments to aid revenue officers.
Atlanta, GEORGIA, September 30, 1876.
General Roger reports seventy-one detachments to aid civil officers. Hundreds more have been made. So glaring and frequent had the violations of all law become that the generals, in defense of their honor and interests, made earnest protests against these practices, recommending the users of laws defining more accurately the duties of the soldiery. An educated soldier could not fail to understand the immense responsibility he incurred not only to a newly elected President whose more acute understanding of the law would compel him to take measures for the removal of such officers as had thus defiantly violated it, but also to local authorities within whose jurisdiction these violations occurred. Therefore the General of the Army, Sherman. in his report of June 10. 1870, says: “In the examination of the reports herewith I invite your attention to the recommendation of General Halleck, which refers to the use of troops in assisting the civil authorities in maintaining peace, collecting the revenue, &c., which has become so common of late. The duties of the soldiery in this connection are not prescribed by statute so clear that the officers can understand their rights and duties, and the civil agents and authorities often expect more than can be rightfully and lawfully done. I think that soldiers ought not to be expected to make individual arrests, or to do any act, of violence except in their organized capacity as a posse comitatus duly summoned by the United States marshal, and acting in his presence.”
LOUISVILLE, KENTUCKY, October 24, 1810.
General Halleck in his report said: “I respectfully repeat the recommendation of my last annual report that military officers should not interfere in local civil differences, unless called out in the manner provided by law, and that requisitions of revenue officers should be accompanied by affidavits or some other proofs that the case comes within the provisions of the law authorizing or requiring military interference. As the case now is the revenue officer is the Judge of the necessity of military guards and escorts. . . . When United States marshals and assistant marshals call for military aid to execute the process of the courts there should be an order of court authorizing such requisition on the ground that no proper posse comitatus could be obtained: Such restriction on the use of military forces in civil matters would in my opinion not only afford a large saving in military expenditure but relieve Army officers from much of the responsibility which they are now obliged to incur in the performance of disagreeable duties which can hardly be said to legitimately belong to the military service. It may be proper to remark in this place that I have been assured by Federal civil officers that the use of troops in executing judicial process and enforcing the revenue and other civil laws seems to increase rather than diminish the necessity of resorting to such force in civil matters. The ill-disposed become more and more exasperated by being coerced by force which they think has been unconstitutionally employed against them and the better disposed relax their efforts to punish local crimes on the plea that this duty now devolves on the military. Hence in the case of a robbery or murder there is a milieu Federal troops to arrest and guard the criminals. It is therefore a question well worthy of consideration, whether the military in civil matters should not be limited to a few well-defined cases, such as riots and insurrections, which can not be suppressed by local and State authorities.”
October 27, 1871, General Halleck again reiterated these recommendations.
Here spoke a soldier whose cultivation, sense of duty, and exalted patriotism impelled him to an independent expression of a well considered opinion. His proud spirit towered above the debasement which would have degraded him to the level of a pliant tool in obedience to the power by which his fortunes might rise or fall. These reports exhibit that not only have hundreds of detachments of an unconstitutional force, the standing Army, been precipitated on the States, but that these detachments have been used in a manner violative of the law intended to restrain the use of the constitutional force, the militia.
The law of 1792, under which President Washington called out the militia to suppress the whisky insurrection, (resistance to the collection of the tax on whiskey,) was re-enacted by sections 5297, 5298, 5299 and 5300 of the Revised Statutes; to which, however, is appended an unconstitutional amendment. This law of 1792 prescribed the conditions on which the constitutional force, the militia, could be used for the execution of the laws and the suppression of insurrection; not one of which were complied with before these detachments of the standing Army were precipitated on the people. No application had been made to the President, as prescribe by the law of 1792 and the law of to-day. No proclamation was made as required by the law of 1792 and the law of to-day. Governors, sheriffs, and other State and local civil officers, and United States district attorneys, assistant marshals, marshals, collectors of revenue, and other revenue officers, requested these generals, and these generals at the request of those officers precipitated these troops upon the people.
If this may be done in one district may it not be done in all the districts? If so, and the interest of a President demands, may he not use this power for his own purposes? May he not by this means subject every reluctant commander to the order of any political miscreant he may choose to make an assistant collector of revenue, until the whole Army is under his control, and then provoke the resistance he seeks for the employment of force and in the name of order substitute his Will for law?
On what pretense Will this practice be defended! The life of the Republic is no longer imperiled. The surrender at Appomattox concluded the case which passion had appealed to the court of arms; the contestants on the southern side of the record had accepted the decision in good faith, and history attests the scrupulous honor which they obeyed the authority of the court. The generals report these practices as occurring between 1870 and 1877, five years after the surrender and continuing until now. Moreover, some of them occurred in Michigan, some in New York; certainly these States never imperiled the life of the Republic. What statute authorizes the practice? If there be such a statute, if the law has authorized such practice, then the Republic has descended to the lowest depth–a despotism sanctioned by law and accepted without protest by the people, the gloom of despair. No sir; I thank God that no such statute exists, and I trust the day may never arrive when a congress of the United States will become so servile as to enact such a law.
No, sir, this is not sanctioned by any statute of the United States, but practiced under a misconstruction of a statute, by which it is attempted to use the standing Army as posse comitatus. It is provided by the Revised Statutes, section 788:
That marshals and their deputies shall have in each State the same powers in executing the laws of the United States that the sheriffs and their deputies may have, by law, in executing the laws thereof.
Under the laws of the several States the sheriffs have the power to summon the posse comitatus, which posse consists of all knight, gentlemen, yeomen, husbandmen, laborers, tradesmen, servants, and apprentices, and all other such persons above the age of fifteen years that are able to travel, (Dalton’s Office Sheriffs, 354,) which definition existed from the earliest to the present time. No one, I presume, will attempt to maintain than a sheriff has the right to summon the Army of the United States to serve as a posse. If the sheriff cannot, how can the marshal? The authority is exactly the same. Fortunately the interpretation of the statute was made by those who framed it in 1795. The section 788 of the Revised Statutes is section 9 of the law of 1795, which law of 1795 is entitled “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The action of President Washington was in perfect accord with this interpretation during the whisky insurrection. The revenue laws (the tax on whisky) were resisted. The court of the district was powerless; it notified the President; the President called out the militia, and Congress thanked the militia—not the standing Army summoned as a posse, but the militia called forth by the President.
This attempt to clothe the marshals, the lowest officers of the United States courts, with authority to use a standing army as a posse comitatus had its origin in an opinion of Mr. Attorney-General Cushing. (6 Opinions of the Attorneys-General.)
It must forever be regretted that this learned lawyer should so far have forgotten what was due, alike to the cause of liberty, to the fathers who framed the Constitution, and to his own honor, as to write an opinion so utterly without foundation in law, which sought to facilitate the use of a standing army against his fellow-countrymen. Who reads this opinion in the light of the attending circumstances, as shown in the history of the times, will learn how a great lawyer may warp the law and the Constitution of his country to answer the demands of an emergency threatening to destroy the hopes of his unprincipled ambition.
In all the law of all the past, whose treasures are said to be obedient to his demand, this learned lawyer could find in support of this opinion, so pregnant with evil, not one enactment, not one judicial decision. is sole authority is Lord Mansfield, not as a judge, but as a statesman; not his decision on the bench, but from a debate in the House of Lords on the Gordon riots, when nearly eighty years had impaired his understanding, when the burning of his vast library had mused his anger, and threats against his life had quickened his team. On this more assertion Mr. Cushing has based this infamous opinion, although he must have known that in that very debate the Duke of Richmond, Lord North, and Mr. Fox suggested an act of indemnity to hold harmless the soldiers whose employment in the suppression of the mob had violated the law and offended the spirit of English liberty. And he knew further that the riot which occasioned that debate was of such proportions as to be treated as treason; that more than one hundred thousand men participated in it, and its leader, Lord George Gordon, was tried for treason and was saved by the influence of a strong family and the plea. of a weak brain. This riot occurred nine years prior to the adoption of the American Constitution, and the employment of the army for its suppression may have been one of the uses of a standing army against which the others sought to provide when they indicated that a standing army, if it existed, was to be used only for defense in war, and the militia for the execution of the laws in peace.
If, sir, under this statute, as interpreted by Mr. Cushing’s opinion, the standing Army of the United States can be used as a posse comitatus for the execution of the laws we are living under a military despotism unqualified and absolute, for what is military despotism but the use of troops against the people without due authority of law? It matters not how many the troops, nor by whom commanded, whether a platoon by a corporal or an army by a general, whether directed by a deputy collector of revenue or the President of the United States; nor, sir, is the tyranny to be measured by the number of its victims; whether one person or one million have suffered the Constitution is equally violated, the spirit of liberty equally offended. Disguise it as we may the despotism is as thorough as that attempted by Strafford and accomplished by Monk. Resistance cost Strafford his head, submission cost the people their liberty. In the short space of twenty years the liberty-loving compeers of Hampden had degenerated into the luxury-loving slave of Charles. It is to be feared the heroes on both sides of the line have in a short time, from 1800 to 1878, given signs of the same degeneration. It is not the fear of bodily harm, but the love of luxury that makes men cowards and slaves.