A. Well, gentlemen, I think the law on that subject has been very much changed by the act of 1864. That is here. I would like to refer you to it. I think very radical changes were made in the law relative to calling out the militia, by the act of 1864, that has been much adverted to lately. I think it establishes a very different system.
Q. From that heretofore in practice?
A. I think so. I think it is altogether different. As I understand that law, it is not necessary at all that the sheriff should notify the Governor. It might be done by the mayor, or alderman, or even by any citizen. The Governor himself judges of the sufficiency.
Q. As you understand the law, is it necessary for the sheriff to make an effort to obtain a posse comitatus before calling on the Governor?
A. I certainly would think the sheriff, the principal peace officer of the county, ought to make some effort to get a posse comitatus to control that riot; but there are cases where the riot has taken such proportions, as I think this one had—I do not regard it as local at all, for it extended from the Mississippi to the Atlantic—there are such cases where no posse comitatus could deal with them at all.
Q. At the time the sheriff made the call on the Governor, was it not principally local?
A. As to that I cannot speak from personal knowledge. What has been told to me was, in substance, this: That when the sheriff first met the gathering at Twenty-eighth street, there was a large collection of people, numbering, I don't know how many, but one or two thousand people, and this was in the middle of the night—towards eleven o'clock at night. They were gathered there. They insulted the sheriff, threw all sorts of reproaches upon him, blasphemy and obscenity of the very worst character were employed—this I don't know personally, but it has been told to me—and threats were made. Now, it is a question upon which you can judge as well as I, whether, when a crowd can be brought together at that hour of the night—a crowd greatly in excess of all the railroad men in this part of the country—whether any collection of citizens you might obtain, would be able to successfully disperse them, and it is a question very hard to determine.
Q. Would it, in your judgment, be the duty of the sheriff to make an effort to obtain a posse before calling on the Governor?
A. Unless the effort was plainly fruitless, I would not understand the law to require him to do a thing that is plainly unnecessary. If an armed force would come into the county which the sheriff evidently could not deal with citizens, especially without arms, I would not think it necessary to expose himself to any sacrifice of life. If the disturbance were local, I think he ought to make a serious effort to disperse it, before calling on the Governor. The law, as I understand it, and the only law in force on this subject, is the act of 1864, which was passed during the war—during the time of the rebellion, and when there were disturbances in different parts of this State. I understand it authorizes the Governor to call out the militia, on any information that satisfies his mind, whether it is of an official character or not. It is in these terms:
"When an invasion of, or insurrection in, the State is made or threatened, or a tumult, riot, or mob shall exist, the commander-in-chief shall call upon the militia to repel or suppress the same, and may order our divisions, brigades, regiments, battalions, or companies, or may order to be detached parts or companies thereof, or any number of men to be drafted therefrom, and may cause officers to be detailed, sufficient with those attached to the troops to organize the forces."