A Compilation of the Messages and Papers of the Presidents. Volume 7, Part 2: Rutherford B. Hayes

section 5529.. Sec. 5532. Every Person Convicted of Any of the Offenses

SEC. 5532. Every person convicted of any of the offenses specified in the five preceding sections shall, in addition to the punishments therein severally prescribed, be disqualified from holding any office of honor, profit, or trust under the United States; but nothing in those sections shall be construed to prevent any officer, soldier, sailor, or marine from exercising the right of suffrage in any election district to which he may belong, if otherwise qualified according to the laws of the State in which he offers to vote.

The foregoing enactments would seem to be sufficient to prevent military interference with the elections. But the last Congress, to remove all apprehension of such interference, added to this body of law section 15 of an act entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1879, and for other purposes," approved June 18, 1878, which is as follows:

SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section; and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years, or by both such fine and imprisonment.

This act passed the Senate, after full consideration, without a single vote recorded against it on its final passage, and, by a majority of more than two-thirds, it was concurred in by the House of Representatives.

The purpose of the section quoted was stated in the Senate by one of its supporters as follows:

Therefore I hope, without getting into any controversy about the past, but acting wisely for the future, that we shall take away the idea that the Army can be used by a general or special deputy marshal, or any marshal, merely for election purposes, as a posse, ordering them about the polls or ordering them anywhere else, when there is an election going on, to prevent disorders or to suppress disturbances that should be suppressed by the peace officers of the State; or, if they must bring others to their aid they should summon the unorganized citizens, and not summon the officers and men of the Army as posse comitatus to quell disorders, and thus get up a feeling which will be disastrous to peace among the people of the country.

In the House of Representatives the object of the act of 1878 was stated by the gentleman who had it in charge in similar terms. He said:

But these are all minor points and insignificant questions compared with the great principle which was incorporated by the House in the bill in reference to the use of the Army in time of peace. The Senate had already conceded what they called and what we might accept as the principle, but they had stricken out the penalty, and had stricken out the word "expressly" so that the Army might be used in all cases where implied authority might be inferred. The House committee planted themselves firmly upon the doctrine that rather than yield this fundamental principle, for which for three years this House had struggled, they would allow the bill to fail, notwithstanding the reforms which we had secured, regarding these reforms as of but little consequence alongside the great principle that the Army of the United States, in time of peace, should be under the control of Congress and obedient to its laws. After a long and protracted negotiation, the Senate committee have conceded that principle in all its length and breadth, including the penalty, which the Senate had stricken out. We bring you back, therefore, a report, with the alteration of a single word, which the lawyers assure me is proper to be made, restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.

* * * * *

Thus have we this day secured to the people of this country the same great protection against a standing army which cost a struggle of two hundred years for the Commons of England to secure for the British people.

From this brief review of the subject it sufficiently appears that under existing laws there can be no military interference with the elections. No case of such interference has, in fact, occurred since the passage of the act last referred to. No soldier of the United States has appeared under orders at any place of election in any State. No complaint even of the presence of United States troops has been made in any quarter. It may therefore be confidently stated that there is no necessity for the enactment of section 6 of the bill before me to prevent military interference with the elections. The laws already in force are all that is required for that end.

But that part of section 6 of this bill which is significant and vitally important is the clause which, if adopted, will deprive the civil authorities of the United States of all power to keep the peace at the Congressional elections. The Congressional elections in every district, in a very important sense, are justly a matter of political interest and concern throughout the whole country. Each State, every political party, is entitled to the share of power which is conferred by the legal and constitutional suffrage. It is the right of every citizen possessing the qualifications prescribed by law to cast one unintimidated ballot and to have his ballot honestly counted. So long as the exercise of this power and the enjoyment of this right are common and equal, practically as well as formally, submission to the results of the suffrage will be accorded loyally and cheerfully, and all the departments of Government will feel the true vigor of the popular will thus expressed.

Two provisions of the Constitution authorize legislation by Congress for the regulation of the Congressional elections.

Section 4 of Article I of the Constitution Declares--

The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.

The fifteenth amendment of the Constitution is as follows:

SEC. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.

The Supreme Court has held that this amendment invests the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right the court declares to be exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. The power of Congress to protect this right by appropriate legislation is expressly affirmed by the court.

National legislation to provide safeguards for free and honest elections is necessary, as experience has shown, not only to secure the right to vote to the enfranchised race at the South, but also to prevent fraudulent voting in the large cities of the North. Congress has therefore exercised the power conferred by the Constitution, and has enacted certain laws to prevent discriminations on account of race, color, or previous condition of servitude, and to punish fraud, violence, and intimidation at Federal elections. Attention is called to the following sections of the Revised Statutes of the United States, viz:

Section 2004, Which Guarantees to All Citizens the Right to Vote,

without distinction on account of race, color, or previous condition of servitude.

Sections 2005 and 2006, which guarantee to all citizens equal opportunity, without discrimination, to perform all the acts required by law as a prerequisite or qualification for voting.

Section 2022, Which Authorizes the United States Marshal and

his deputies to keep the peace and preserve order at the Federal elections.

Section 2024, which expressly authorizes the United States marshal and his deputies to summon a posse comitatus whenever they or any of them are forcibly resisted in the execution of their duties under the law or are prevented from executing such duties by violence.

Section 5522, Which Provides for the Punishment of the Crime of

interfering with the supervisors of elections and deputy marshals in the discharge of their duties at the elections of Representatives in Congress.

These are some of the laws on this subject which it is the duty of the executive department of the Government to enforce. The intent and effect of the sixth section of this bill is to prohibit all the civil officers of the United States, under penalty of fine and imprisonment, from employing any adequate civil force for this purpose at the place where their enforcement is most necessary, namely, at the places where the Congressional elections are held. Among the most valuable enactments to which I have referred are those which protect the supervisors of Federal elections in the discharge of their duties at the polls. If the proposed legislation should become the law, there will be no power vested in any officer of the Government to protect from violence the officers of the United States engaged in the discharge of their duties. Their rights and duties under the law will remain, but the National Government will be powerless to enforce its own statutes. The States may employ both military and civil power to keep the peace and to enforce the laws at State elections. It is now proposed to deny to the United States even the necessary civil authority to protect the national elections. No sufficient reason has been given for this discrimination in favor of the State and against the national authority. If well-founded objections exist against the present national election laws, all good citizens should unite in their amendment. The laws providing the safeguards of the elections should be impartial, just, and efficient. They should, if possible, be so nonpartisan and fair in their operation that the minority--the party out of power--will have no just grounds to complain. The present laws have in practice unquestionably conduced to the prevention of fraud and violence at the elections. In several of the States members of different political parties have applied for the safeguards which they furnish. It is the right and duty of the National Government to enact and enforce laws which will secure free and fair Congressional elections. The laws now in force should not be repealed except in connection with the enactment of measures which will better accomplish that important end. Believing that section 6 of the bill before me will weaken, if it does not altogether take away, the power of the National Government to protect the Federal elections by the civil authorities, I am forced to the conclusion that it ought not to receive my approval.

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