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You remark that “when you found that the marshal had, without molestation, executed his office in the county of Fayette, that he never was insulted or opposed till he acted in company with General Neville, and that the virulence of the rioters was directly manifested against the person and property of the latter gentleman, and only incidentally against the person of the former, you thought there was ground yet to suppose that a spirit of opposition to the officers employed under the excise law, and not a spirit of opposition to the officers employed in the administration of justice, was the immediate source of the outrages which are deprecated."
It is natural to inquire how this supposition could consist with the additional facts which appeared by the same evidence, namely, that the marshal having been afterwards made prisoner by the rioters, had been compelled, for obtaining safety and liberty, to promise to execute no more processes within the discontented scene; and that subsequently again to this, in consequence of a deputation of the rioters deliberately sent to demand a surrender of the processes in his possession, enforced by a threat, he had found it necessary to seek security in withdrawing by a secret and circuitous route; did not these circumstances unequivocally denote that officers employed in the administration of justice were as much objects of opposition as those employed in the execution of the particular laws, and that the rioters were at least consistent in their plan?
It must needs be, that these facts escaped your excellency's attention, else they are too material to have been omitted in your review of the evidence, and too conclusive not to have set aside the supposition which you entertained, and which seemed to have had so great a share in your general view of the subject.
There remains only one point on which your excellency will be longer detained—a point, indeed, of great importance, and consequently demands serious and careful reflection. It is the opinion you so emphatically express, that the mere dispersion of the insurgents is the sole object for which the militia can be called out, or kept in service after they may have been called out.
The President reserves to the last moment the consideration and decision of this point.
But there are arguments weighing heavily against the opinion you have expressed, which, in the mean time, are offered to your candid consideration.
The Constitution of the United States (article 1, section 8) empowers Congress “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” evidently from the wording and distribution of the sentence, contemplating the execution of the laws of the Union, as a thing distinct from the suppression of insurrections.
The act of May 2, 1792, for carrying the provision of the Constitution into effect, adopts for its title the very words of the Constitution, being “ An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” continuing the constitutional distinction.
The first section of the act provides for the cases of invasion, and of insurrection, confining the latter to the case of insurrection against the government of a State. The second section provides for the case of the execution of the laws being obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Inarshals.
The words are these: “Whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States by an associate judge, or the district judge, it shall be lawful for the President of the United States to call forth the militia of such State to suppress such combinations, and to cause the laws to be duly executed.” Then follows a provision for calling forth the militia of other States.
The terms of this section appear to contemplate and describe something that may be less than insurrection. "The combinations” mentioned may indeed amount to insurrections, but it is conceivable that they may stop at associations not to comply with the law, supported by riots, assassinations, and murders, and by a general spirit in a part of the community, which may baffle the ordinary judiciary means, with no other aid than the posse comitatus, magistrates and officers in the execution of their duty. And the objects for which the militia are to be called are expressly not only to suppress these combinations, (whether amounting to insurrections or not,) but to cause the laws to be duly executed.
It is therefore plainly contrary to the manifest general intent of the Constitution and of this act, and to the positive and express terms of the second section of the act, to say that the militia called forth are not to be continued in service for the purpose of causing the laws to be duly excecuted, and, of course, till they are so executed.
What is the main and ultimate object of calling forth the militia ? “To cause the laws to be executed.” ich are the laws to be executed? Those which are opposed and obstructed in their execution by the combinations described in the present case—the laws laying duties upon spirits distilled within the United States, and upon stills; and incidentally those which uphold the judiciary functions. When are the laws executed ? Clearly, when the opposition is subdued; when penalties for disobedience can be enforced; when a compliance is effectuated.
Would the mere dispersion of insurgents, and their retiring to their respective homes, do this? Would it satisfy either member of the provision—the suppression of the combinations or the execution of the laws? Might not the former, notwithstanding the dispersion, continue in full vigor, ready at any moment to break out into new acts of resistance to the laws? Are the militia to be kept perpetually marching and counter-marching towards the insurgents while they are embodied, and from them when they have separated and retired ? Suppose the insurgents, hardy enough to wait the experiment of a battle, are vanquished, and then disperse and retire home, are the militia immediately to retire also ? to give them an opportunity to reassemble, recruit, and prepare for another battle? And is this to go on, and be repeated without limit?
Such a construction of the law, if true, were certainly a very unfortunate one, rendering its provisions essentially nugatory, and leading to endless expense, and as endless disappointment. It could hardly be advisable to vex the militia, by marching them to a distant point, where they might scarcely be arrived before it would be legally necessary for them to return, not in consequence of having effected their object—of having “caused the laws to be executed”—but in consequence of the mere stratagem of a deceitful dispersion and retiring.
Thus far the spirit as well as the positive letter of the law, combats the construction which you have adopted. It remains to see if there be any other part of it which compels to a renunciation both of the letter and spirit of the antecedent provisions.
The part which seems to be relied upon for this effect, is the third section, which by way of proviso enjoins, " That whenever it may be necessary, in the judgment of the President, to use the military force by that act directed to be called forth, he shall forthwith, and previous thereto, by proclamation, command the insurgents to disperse and retire peaceably to their respective abodes, within a limited time.” But does this affirm, does it necessarily even imply, that they, after the dispersion and retiring, are not to be used for the purpose for which they are authorized to be called forth, that is, “to cause the laws to be duly executed,” to countenance by their presence, and, in case of further resistance, to protect and support by their strength, the respective civil officers in the execution of their several duties, whether for bringing delinquents to punishment, or otherwise for giving effect to the laws? May not the injunction of this section be regarded as a merely humane and prudent precaution, to distinguish, previous to the actual application of force, a hasty tumult from a deliberate insurrection? To give an opportunity for those who may be accidentally or inadvertently mingled in a tumult or disorderly rising, to separate and withdraw from those who are designedly and deliberately actors? To prevent, if possible, bloodshed in a conflict of arms, and, if this cannot be done, to render the necessity of it palpable, by a premonition to the insurgents to disperse and go home? And are not all these objects compatible with the further employment of the militia for the ulterior purpose of causing the laws to be executed in the way which has been mentioned? If they present a rational end for the proviso, without defeating the main design of the antecedent provision, it is clear they ought to limit the sense of the former, and exclude a construction which must make the principal provision nugatory..
Do not the rules of law and reason unite in declaring that the different parts of a statute shall be so construed, as, if possible, to consist with each other; that a proviso ought not to be understood or allowed to operate in a sense tending to defeat the principal clause; and that an implication (if, indeed, there be any such implication as is supposed in the present case) ought not to overrule an express provision, especially at the sacrifice, at the manifest general intent of a law, which, in the present case, undoubtedly is, that the militia shall be called forth “ to cause the laws to be duly executed ?"
Though not very material to the merit of the argument, it may be remarked, that the proviso which forms the third section, contemplates merely the case of insurrection. If the combinations described in the second section may be less than insurrection, then the proviso is not commensurate with the whole case con. tained in the second section, which would be an additional circumstance to prove that it cannot work an effect which shall be a substitute for the main purpose of the first section.
I have the honor to be, with perfect respect, sir, your excellency's most obedient servant.