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1414. Republican form of government.-The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature can not be convened), against domestic violence.1 Constitution of the United States, Article IV, section 4.

1415. Power of Congress over militia.-The Congress shall have power

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To provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and repel invasions. Constitution of the United States, Article I, section 8, paragraph 15.

1416. Insurrection against a State.-In case of an insurrection in any State against the government thereof, it shall be lawful for the President, on application of the legislature of such State, or of the executive, when the legislature can not be convened, to call forth such number of the militia of any other State or States, which may be applied for, as he deems sufficient to suppress such insurrection; or, on like application, to employ, for the same purposes, such part of the land or naval forces of the United States as he deems necessary. 5297, R. S.

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Luther v. Borden, 7 How., 1; Texas v. White, 7 Wall., 700; in re Duncan, 139 U. S., 449; Taylor et al. v. Beckham (No. 1), 178 U. S., 548; South Carolina v. United States, 199 U. S., 437; Elder v. Colorado ex rel. Badgley, 204 U. S., 85; Pacific States Telephone Co. v. Oregon, 223 U. S., 118; Kiernan v. Portland, 223 U. S., 151. See also Winthrop, Military Law and Precedents, pp. 13471349.

"For enactments of Congress in pursuance of the authority above conferred see the chapter entitled The Militia. See also subsequent paragraphs of this chapter.

This paragraph and those following to include-give Sections 5297 to 5322, inclusive, of the Revised Statutes. These sections constitute Title 49, Insurrection, of the Revised Statutes. See Winhtrop, Military Law and Precedents, pp. 1349-1351.

4 Under article 4, section 4, of the Constitution, the Army may be employed to protect a State from "invasion" or "domestic violence" only by order of the President, made" on application of the legislature, or of the executive when the legislature can not be convened." A military commander, of whatever rank or command, can have no authority, except by the order thus made of the Presi dent, to furnish troops to a governor or other functionary of a State, to aid him in making arrests or establishing law and order. (Dig. Opin. J. A. G., p. 99, II, A.)

The proviso of the Constitution, "when the legislature can not be convened," may be said to mean when it is not in session, or can not, by the State law, be assembled forthwith or in time to provide for the emergency. When it is in

1417. Insurrection against the Government of the United States.Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed.1 Sec. 5298, R. S.

session, or can legally and at once be called together, it will not be lawful for the President to employ the Army on the application merely of the governor. (Id., p. 99, II, A, 1.)

Where calls are made upon the President, under section 4, article 4, of the Constitution, by two persons, each claiming to be governor of the same State, to protect the State against domestic violence, it of necessity devolves upon the President to determine, before giving the required aid, which of such persons is the lawful incumbent of the office. (XIV Opin. Att. Gen., 391; VII id., 8; Prize Cases, 2 Black, 97; Dodge v. Woolsey, 18 Howard, 373; Ex parte Milligan, 4 Wallace, 129.)

A military force employed according to article 4, section 4, of the Constitution, is to remain under the direction and orders of the President as Commander in Chief and his military subordinates; it can not be placed under the direct orders or exclusive disposition of the governor of the State. (Dig. Opin. J. A. G., p. 101, II, E.)

In all cases of civil disorders or domestic violence it is the duty of the Army to preserve an attitude of indifference and inaction till ordered to act by the President, by the authority of the Constitution or of section 2150, 5297, or 5298, Revised Statutes, or other public statute. An officer or soldier may, indeed, interfere to arrest a person in the act of committing a crime, or to prevent a breach of the peace in his presence, but this he does as a citizen and not in his military capacity. Any combined effort by the military, as such, to make arrests or otherwise prevent breaches of the peace or violations of law in civil cases, except by the order of the President or the requirement of a United States official authorized to require their services on a posse comitatus, must necessarily be illegal. In a case of civil disturbance in violation of the laws of a State, a military commander can not volunteer to intervene with his command without incurring a personal responsibility for his acts. In the absence of the requisite orders he may not even march or array his command for the purpose of exerting a moral effect or any effect in terrorem; such a demonstration, indeed, could only compromise the authority of the United States, while insulting the sovereignty of the State. (Id., p. 101, II. D.)

See also Army Regulations, article 47, for instructions as to the use of the military force in support of the civil authority.

The National Government has the right to use physical force in any part of the United States to compel obedience to its laws, and to carry into execution the powers conferred upon it by the Constitution. "We hold it to be an incontrovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it." (Ex parte Siebold, 100 U. S., 371, 395; U. S. v. Neagle, 135 U. S., 1, 60; Logan v. U. S., 144 U. S., 263, 294; in re Waite, 81 Fed. Rep., 359; U. S. v. Debs, 164 U. S., 724; U. S. v. Cassidy, 67 Fed. Rep., 698.)

An officer who, in the performance of what he conceives to be his official duties, transcends his authority, and invades private rights, is answerable therefor to the Government under whose appointment he acts, and to individuals

1418. Power to suppress insurrection.-Whenever insurrection, domestic violence, unlawful combinations, or conspiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by the laws for the protection of such rights, privileges, or immunities, and the constituted authorities of such State are unable to protect, or, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or whenever any such insurrection, violence, unlawful combination or conspiracy, opposes or obstructs the laws of the United States, or the due execution thereof, or impedes or obstructs the due course of justice under the same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary, for the suppression of such insurrection, domestic violence, or combinations. Sec. 5299, R. S.

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1419. Proclamation to insurgents to disperse.-Whenever, in the judgment of the President, it becomes necessary to use the military forces under this title, the President shall forthwith, by proclamation, command the insurgents to disperse and retire peaceably to their respective abodes, within a limited time. Sec. 5300, R. S.

injured by his action; but where there is no criminal intent, he is not liable to answer the criminal process of another Government. (In re Lewis, 83 Fed. Rep., 159; in re Fair et al. 100, id., 149.)

An officer of the Army of the United States whilst serving in the enemy's country during the rebellion was not liable to an action in the courts of that country for injuries resulting from his military orders or acts; nor could he be required by a civil tribunal to justify or explain them upon any allegation of the injured party that they were not justified by military necessity. He was subject to the laws of war, and amenable only to his own Government. (Dorr v. Johnson, 100 U. S., 158; Luther v. Borden, 7 Howard, 1, 46.)

As a necessary incident of the power to declare and prosecute war, the Federal Government has a right to transport troops through and over the territory of any State of the Union. (Crandall v. Nevada, 6 Wall., 35. See also XVI Opin. Att. Gen., 162; XVII id., 242, 333; XIX id., 293, and note to par. 1418, post.)

The power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other except where both can not be executed at the same time. In that case the words of the Constitution itself show which is to yield; "this Constitution and the laws of the United States which shall be made in pursuance thereof; * shall be the supreme law of the land."

Although no State could establish and maintain a permanent military government, yet it may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The State must determine for itself what degree of force the crisis demands. (Luther v. Borden, 7 How., 1. See also XVI Opin. Att. Gen., 162. (See also note 2 to par. 1416, ante.)

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See XVII Opin. Att. Gen., 333. Section 2 of the act of May 4, 1880 (21 Stat. 113), contained the requirement "that no money appropriated in this act is ap

SUSPENSION OF INTERCOURSE.

1420. Suspension of commercial intercourse.-Whenever the President, in pursuance of the provisions of this Title, has called forth the militia to suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by the President, and when the insurgents claim to act under the authority of any State or States, and such claim is not disclaimed or repudiated by the persons exercising the functions of government in such State or States, or in the part or parts thereof in which such combination exists, and such insurrection is not suppressed by such State or States, or whenever the inhabitants of any State or part thereof are at any time found by the President to be in insurrection against the United States, the President may, by proclamation, declare that the inhabitants of such State, or of any section or part thereof where such insurrection exists, are in a state of insurrection against the United States; and thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods and chattels, wares and merchandise, coming from such State or section into the other parts of the United States, or proceeding from other parts of the United States to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section, be forfeited to the United States.1 Sec. 5301, R. S.

1421. In loyal States.-Whenever any part of a State not declared to be in insurrection is under the control of insurgents, or is in dangerous proximity to places under their control, all commercial intercourse therein and therewith shall be subject to the prohibitions and conditions of the preceding section for such time and to such extent as shall become necessary to protect the public interests, and be directed by the Secretary of the Treasury, with the approval of the President. Sec. 5302, R. S.

1422. To whom prohibition shall extend. The provisions of this Title in relation to commercial intercourse shall apply to all commercial intercourse by and between persons residing or being within dis

propriated or shall be paid for the subsistence, equipment, transportation, or compensation of any portion of the Army of the United States to be used as a police force to keep the peace at the polls at any election held within any State: Provided, That nothing in this provision shall be construed to prevent the use of troops to protect against domestic violence in each of the States on application of the legislature thereof or of the executive when the legislature can not be convened."

1 See The Reform, 2 Wall., 258; id., 3 Wall., 617; U. S. v. Weed, 5 Wall., 62; The Hampton, 5 Wall., 372; The Ouachita Cotton, 6 Wall., 521; The Venice, 2 Wall., 258; Cutner v. U. S., 17 Wall., 517.

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