THE USE OF THE ARMY IN AID OF THE CIVIL POWER. By the use of the Army in aid of the civil power is here meant its use under some power granted by the Constitution of the United States, either directly or through the medium of legislation. "War powers,' independent of the Constitution, whatever they may be, and whether legislative or executive, are no part of this subject.' The use here spoken of has reference to the occasions for the employment of the Army, that is, to the purposes for which it may be used, and not to what it may do in carrying out the use. The occasions had in view are those of resistance to the law not amounting to war, and the subject to which these observations will be more especially addressed is the employment of the Army in executing the laws of the United States and in protecting their instrumentalities of government against unlawful interference. The Army Appropriation Act of June 18, 1878, contained the following provision: "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 1 The North American Review for November, 1896, publishes the writer's views on what constitutes the justification of the war power known as "martial law." The position is there taken that martial law is defensible only as an exercise of executive military power founded in actual necessity, thus disagreeing with the view, sometimes advanced, that it is within the power of Congress to authorize it. (3) |