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; Γ. 8. 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. r. 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

men called for: Provided, That the power to organize volunteer forces shall include the power to provide, within such limits as are or may be prescribed by law, the officers and enlisted men of all grades and classes, and the trained nurses, male and female, that may be necessary in the various arms, corps, and departments: Provided further, That when three-fourths of the prescribed minimum enlisted strength of any company, troop, or battery, or when threefourths of the prescribed minimum enlisted strength of each company, troop, or battery comprised in any battalion or regiment of the organized land militia of any State, Territory, or the District of Columbia, organized as prescribed by law and War Department regulations, shall volunteer and be accepted for service in the Volunteer Army as such company, troop, battery, battalion or regiment, such organization may be received into the volunteer forces in advance of other organizations of the same arm or class from the same State, Territory, or District, and the officers in the organized land militia service with such organization may then, within the limits prescribed by law, be appointed by the President, by and with the advice and consent of the Senate, as officers of corresponding grades in the Volunteer Army and be assigned to the same grades in the said organization or elsewhere as the President may direct: Provided further, That all enlisted men received into the service in the volunteer forces shall, as far as practicable, be taken from the several States and Territories and the District of Columbia in proportion to the respective populations thereof: Provided further, That when the raising of a volunteer force shall have been authorized by Congress, and after the organized land militia of any arm or class shall have been called into the military service of the United States, volunteers of that particular arm or class may be raised and accepted into said service in accordance with the terms of this Act regardless of the extent to which other arms or classes of said militia shall have been called into said service. Sec. 3, id.

1385. Same-subject to laws, regulations, etc., governing Regular Army. That the volunteer forces shall be subject to the laws, orders, and regulations governing the Regular Army in so far as such laws,

1

1 Under the authority conferred by the acts of April 20, and April 22, 1898, and in pursuance of the declaration of war with the Kingdom of Spain contained in the act of April 25, 1898, a call was addressed to the governors of the several States for a force of 125,000 volunteers. (G. O. 30, A. G. O. 1898.) For regulations respecting the enrollment, armament, and equipment of the volunteer forces thus called into the service of the United States, see General Orders 26, 31, 33, and 41, A. G. O. of 1898.

Section 6 of the act of April 22, 1898, conferred authority upon the President to organize companies, troops, battalions, or regiments, possessing special qualifications, from the nation at large, not to exceed three thousand men, under such rules and regulations, including the appointment of the officers thereof, as may be prescribed by the Secretary of War. The act of May 11, 1898 (30 Stat. 405), authorized the organization of "a volunteer brigade of

orders, and regulations are applicable to officers or enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law; and no distinction shall be made between the Regular Army, the organized militia while in the military service of the United States, and the volunteer forces in respect to promotion or to the conferring upon officers or enlisted men of brevet rank, medals of honor, certificates of merit, or other rewards for distinguished service, nor in respect to the eligibility of any officer of said Army, militia, or volunteer forces for service upon any court-martial, court of inquiry, or military commission: Provided, That the organization of all units of the line and of the signal troops of the volunteer forces shall be the same as that prescribed by law and regulations for the corresponding units of the Regular Army: Provided further, That when military conditions so require the President may organize the land forces of the United States into brigades and divisions and such higher units as he may deem necessary, and the composition of units higher than the regiment shall be as he may prescribe: Provided further, That to each regiment of Infantry, Cavalry, and Artillery, and to each battalion of Engineers and Signal Corps troops organized under this Act, there shall be attached the same personnel of the Medical Department as are attached to like organizations of the Regular Army: Provided further, That the organization of the coast defenses, of machine-gun detachments, establishments of the Medical Department, remount depots, military trains, secret-service agencies, military prisons, lines of communication, including their supply depots, and of other adjuncts that may be necessary in the prosecution of war, and the organization of which is not otherwise provided for by law, shall be as the President may from time to time direct. Sec. 4, id.

1386. Same-President to appoint officers of. That except as otherwise provided herein the President is authorized, by and with the advice and consent of the Senate, to appoint all volunteer officers required by this Act, but the number and grade of such officers shall not exceed the number and grade of like officers provided for a like tricts within the lines of national military occupation in the States or parts of States declared in insurrection, whether with each other or with persons residing or being within districts declared in insurrection and not within those lines; and all persons within the United States, not native or naturalized citizens thereof, shall be subject to the same prohibitions, in all commercial intercourse with inhabitants of States or parts of States declared in insurrection, as citizens of States not declared to be in insurrection. Sec. 5303, R. S.

1423. To what extent permitted. -The President may, in his discretion, license and permit commercial intercourse with any part of such State or section, the inhabitants of which are so declared in a state of insurrection, so far as may be necessary to authorize supplying the necessities of loyal persons residing in insurrectionary States, within the lines of actual occupation by the military forces of the United States, as indicated by published order of the commanding general of the department or district so occupied; and, also, so far as may be necessary to authorize persons residing within such lines to bring or send to market in the loyal States any products which they shall have produced with their own labor or the labor of freedmen, or others employed and paid by them, pursuant to rules relating thereto, which may be established under proper authority. And no goods, wares, or merchandise shall be taken into a State declared in insurrection, or transported therein, except to and from such places and to such monthly amounts as shall have been previously agreed upon, in writing, by the commanding general of the department in which such places are situated, and an officer designated by the Secretary of the Treasury for that purpose. Such commercial intercourse shall be in such articles and for such time and by such persons as the President, in his discretion, may think most conducive to the public interest; and, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.1 Sec. 5304, R. S.

1424. Appointment and compensation of officers. - The Secretary of the Treasury may appoint such officers at places where officers of the customs are not now authorized by law as may be needed to carry into effect such licenses, rules, and regulations. In all cases where officers of the customs, or other salaried officers, are appointed by him to carry into effect such licenses, rules, and regulations, such officer shall be entitled to receive one thousand dollars a year for his services, in addition to his salary or compensation under any other

See The Sea Lion, 5 Wall., 630; The Ouachita Cotton, 6 Wall., 521; Coppell v. Hall, 7 Wall., 542; McKee v. U. S., 8 Wall., 163; U. S. v. Lane, 8 Wall., 185. As to intercourse with occupied territory, see chapter 12, Military Government and Martial Law, Birkhimer.

law. But the aggregate compensation of any such officer shall not exceed the sum of five thousand dollars in any one year. Sec. 5305, R. S.

1425. Trading without license, etc. Every officer of the United States, civil, military, or naval, and every sutler, soldier, marine, or other person, who takes or causes to be taken into a State declared to be in insurrection, or to any other point to be thence taken into such State, or who transports or sells, or otherwise disposes of therein, any goods, wares, or merchandise whatsoever, except in pursuance of license and authority of the President, as provided in this title, or who makes any false statement or representation upon which license and authority is granted for such transportation, sale, or other disposition, or who, under any license or authority obtained, willfully and knowingly transports, sells, or otherwise disposes of any other goods, wares, or merchandise than such as are in good faith so licensed and authorized, or who willfully and knowingly transports, sells, or disposes of the same, or any portion thereof, in violation of the terms of such license or authority, or of any rule or regulation prescribed by the Secretary of the Treasury concerning the same, or who is guilty of any act of embezzlement, of willful misappropriation of public or private money or property, of keeping false accounts, or of willfully making any false returns, shall be deemed guilty of a misdemeanor, and shall be fined not more than five thousand dollars, and imprisoned in the penitentiary not more than three years. Violations of this section shall be cognizable before any court, civil or military, competent to try the same. 5306, R. S.

Sec.

1426. Investigations to detect frauds. It shall be the duty of the Secretary of the Treasury, from time to time, to institute such investigations as may be necessary to detect and prevent frauds and abuses in any trade or transactions which may be licensed between inhabitants of loyal States and of States in insurrection. And the agents making such investigations shall have power to compel the attendance of witnesses, and to make examinations on oath. Sec: 5307, R. S.

1427. Confiscation of property employed in aid of insurrection.Whenever during any insurrection against the Government of the United States, after the President shall have declared by proclamation that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person, or his agent, attorney, or employé, purchases or acquires, sells or gives, any property of whatsoever kind or description, with intent to use or employ the