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CHAPTER 44.

EMPLOYMENT OF MILITARY FORCE.

Protection of localities by Federal troops :

Restrietion, 2812.
States, 2813.

Suppression of insurrection, 2814.
Alaska, 2815.
Hawaiian Islands, 2816.
Capal Zoue, 2817.

Philippine Islands, 2818.
Insurrection against the Federal Govern-

Raising armies, 2785.

Calling forth the militia, 2786.
Troops to have right of way, 2787.
Interference with elections :

Presence of troops at polls, 2788.
Coercion of voters, 2789.
Prescribing qualifications of electors,

2790.
Coerejon of an election official, 2791.

Penalty, 2792.
Civil rights protected, 2793.

Peonage prevented, 2794.
Protection of national parks :

Yellowstone National Park, 2795.

Parks in California, 2796.
Rights of a discoverer protected, 2797.
Laws concerning Indians enforced :
Military forces employed, 2798.

Limit of detention, 2799.

Arrest of Indians, 2800.
Live stock of restricted Indians, 2801.

Sale, 2802.
Intoxicants prohibited-

In Indian country, 2803.
For Indta ns, 2804,
Furnished by soldiers, 2805.
Wines for sacramental purposes, 2806.
Search for concealed liquors, 2807.
Distilleries prohibited, 2808.

Possession, 2809.
Removal of persons from Indian country,

2810.
Unauthorized settlers, 2811.

Suppression by armed forces, 2819.
Suppression by every means, 2820.

Proclamation to disperse, 2821. Suspension of commercial intercourse: State in insurrection, 2822.

Part of State in insurrection, 2823.
Persons affected, 2824.
Licenses to trade, 2825,

Trading without license, 2826.
Vessels detained, 2827.
Armed forces employed, 2828.
Confiscation of property-

Seizure, 2829.
Condemned in court, 2830.
Proceedings of condemnation, 2831,
Vessels, forfeited, 2832.

Liens upon condemned vessels, 2833. Declaration of war:

By Congress, 2834.
With Germany, 2835.
With Austria-Hungary, 2836.

2785. Raising armies.—The Congress shall have Power

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Art. I, sec. 8, Constitution of the United States.

Notes of Decisions.

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Raising and supporting armies--In gen. eral.--A State law imposing a tax on passengers held vold, as interfering with the power of the Federal Government to declare and prosecute war, and as a necessary incident to raise and transport troops througb and over territory of any State. Crandall 1. Nevada (1867), 6 Wall. 35, 44, 18 L. Ed. 745.

Among the powers assigned to the Na. tional Government is the power " to raise

and support armies," and the power " to provide for the Government and regulation of the land and naval forces." The execu. tion of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can de termine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. Tarble's Case (1871), 13 Wall. (U. S.) 397, 408, 20 L. Ed. 597.

The act providing for the reduction of the Army by mustering out certain officers, act of July 15, 1870 (16 Stat. 314), was an exercise of the power “ to raise and support armies." Street v. U. S. (1889), 24 Ct. (1. 230; affirmed, Street v. U. S. (1890), 133 U. S. 307, 10 Sup. Ct. 309, 33 L. Ed. 631.

This clause does not confer on Congress the power to designate by law a person to fill a military office, since this would be in direct conflict with the power of appointment given the President by Const. art. 2, sec. 2. (1884), 18 Op. Atty. Gen. 18, 26.

The power to raise and support armies is plenary, and without limitation or restriction. (1909), 27 Op. Atty. Gen. 260.

The power of Congress to provide for the trial and punishment of military and naval offenses, under the above and other pro. visions of Article 1, section 8, of the Constitution, is independent of the judicial power defined in Article 3 of the Constitution, U. S. v, McDonald (D. C. 1920), 265 Fed. 754.

Conscription. The Constitution of the United States authorizes Congress to raise armies, and also to call forth and organize the militia of the several States. Under this twofold power, both regular national armies and occasional militia forces from the several States may be raised, either by conscription or in other modes. McCall's Case (D. C. 1863), Fed. Cas. No. 8,669.

Under the grant of power to raise and support armies and call out the militia, Congress has power to make and authorize such orders and regulations as may be nec

essary to prevent those who are liable by law to military service from evading that duty, such as an order to prevent them from leaving the country and State, to avoid an impending draft. Allen v. Colby (1867), 47 N. H. 544.

Enlistment of minorg.—This clause gives Congress power to enlist minors in the Army without the consent of their parents. U. S. v. Bainbridge (C. C. 1816), Fed. Cas. No. 14,497.

Under this clause Congress may provide for the enlistment of minors, with or without the consent of their parents, and may give such effect and conclusiveness to the contract of enlistment as it may deem best. In re Davison (C. C. 1884), 21 Fed. 618.

The United States bas a right to pre. scribe the rules and conditions under whicb voluntary or compulsory services are to be rendered by citizens, and the period at which persons reach their majority and become sui juris with respect to the ordinary affairs of life can not abridge this power of the General Government.

(1896), 21 Op. Atty. Gen. 327. See also 2168, 2169, ante.

State courts.-In view of the constitutional grant of power to Congress

to raise and support armies and “to provide for the Government and regulation of the land and naval forces," a State judge bas po jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim or color of authority, of the United States, by an officer of that Government. Tarble's Case (1871), 13 Wall. (N. S.) 397, 408, 20 L. Ed. 597.

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2786. Calling forth the Militia.—The Congress shall have Power

To provide for calling forth militia to execute the Laws of the Union, to suppress Insurrections and repel invasions;

Art I, sec. 8, Constitution of the United States.

For draft of the National Guard into Federal Service, see 2549, ante.

Notes of Decisions.

Power of Congress in general.-Act of May 2, 1792, act of May 8, 1792, act of Jan. 3, 1795, act of Feb. 28, 1795, and act of Apr. 18, 1814, providing for calling forth the militia to execute the laws of the United States, suppress insurrections, and repel invasion, and for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, amount to a full execution of the powers conferred on Congress by the constitution, Houston v. Moore (1820), 5 Wheat. 1, 12, 5 L Ed. 19.

Congress is not deprived of its power under this clause when the necessity for its exercise is called out by civil war. Tyler v. Defrees (1870), 11 Wall. 331, 345, 20 L. Ed. 161.

Under the twofold power to raise armies and call forth the militia, both regular national armies, and occasional militia forces from the several States, may be raised, either by conscription or in other modes. McCall's Case (D. C. 1863), Fed. Cas. No. 8,669,

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to disband companies of the National Guard whenever, in his judgment, the efficacy of the State force will be thereby increased, is not in conflict with power of Congress to call forth the militia, and provide for their government while in the service of the United States. People v. Hill (1891), 13 N. Y. Supp. 186; judg. ment affirmed (1891), 126 N. Y. 497, 27 N. E. 789.

The power of commanding the service of the militia in times of insurrection and invasion is a natural incident to the duties of superintending the common defense, and of watching over the internal peace of the country, and was wisely vested in Congress by the framers of the Constitution, Griner (1863), 16 Wis, 423.

State laws.--Sec, 21, act of Pa. Mar. 28, 1814, prescribing punishment for militiamen neglecting or refusing to serve in re. sponse to call to Federal service, held valid. Houston v. Moore (1820), 5 Wheat. 1, 5 L. Ed. 19.

Under this and the following clause, the only instance where governmental powers may be exercised by the United States is when the militia shall be employed in the service of the United States. At all other times the whole government of the militia Is within the province of the State, and therefore any legislation which the State may adopt relating to the government of the militia' in no wise contracts powers conferred upon Congress, as long as it does not infringe upon the method of organization. People v. Hill (1891), 59 Hun, 624, 13 N. Y. Supp. 637; judgment affirmed (1891), 126 N. Y. 497, 27 N. E. 789.

Courts-martial, organized under the authority of a State, have not power, it seems, to assess

fines on delinquent militiamen for not obeying a requisition from the Secretary of War to enter the service. Meade V. Deputy Marshal (C. C. 1815), Fed. Cas. No. 9,372.

Calling and service of militia.-The President alone is made the judge of the necessity of calling the militia into the service of the United States, and be acts upon his responsibility under the Constitution Martin v. Mott (1827), 25 U. S. (12 Wheat, 19), 6 L Ed. 537; Vanderheyden v. Young (N. Y. 1814), 11 Johns. 150.

See also Luther v Borden (1849), 7 How, 1, 12 L. Ed. 581 ; In re Brockman (Sup. Ct. D. C., 1917), 45 Wash. L. R. 133; (1856) 8 Op. Atty. Gen.

The Constitution, which enumerates the exclusive purposes for which the militia may be called into the service of the United States, affords no warrant for the use of the militia by the General Govern. ment, except to suppress insurrection, repel

invasiops, or to execute the laws of the Union, and hence the President has no authority to call forth the Organized Militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation, (1912) 29 Op. Atty. Gen. 322.

The power of the President under the Federal Constitution to call the whole militía of any part of the Union into service in case of invasion may be exercised by his delegate, 1. e., a general commanding in chief in a particular district; and all citi. zens subject to militia duty may thereby be placed under military law, but this is the extent of martial law, and all beyond is usurpation. Johnson v. Duncan (La. 1815), 3 Mart. (O. S.) 530, 6 Am. Dec. 675,

The commanders in chief of the militia of the several States have a right to determine whether any of the exigencies coutemplated by the Constitution of the United States exist, so as to require them to place the militia, or any part of it, in the service of the United States, at the request of the President, to be commanded by him, pursuant to acts of Congress. In re Opinion of the Judges (1812), 8 Mass, 549.

Under this clause the raising of militia by draft under order of the President and the punishment of delinquents refusing or neglecting to serve are matters of Federal cognizance. Matter of Spangler (1863), 11 Mich. 298.

Act of Feb. 28, 1795 (R. S. 1642), passed by virtue of this clause gave the President authority in case of invasion or danger of it to call forth the militia, which thereafter were subject to the same rules as the United States troops, and provided a penalty for failure of the militia to obey the President's orders. Held, thereunder, that on the President's calling on the State executives for militia pursuant to the ex. press provisions of act of Apr. 18, 1812, whatever orders were given by the governor respecting the militia called for were given in pursuance of the President's call, and their breach was a breach of the President's orders. Commonwealth v. Irish (Pa. 1815), 3 Serg. & R. 177, note.

The authority under this clause to call forth the militia includes the power to punish delinquent militiamen who fall or refuse to respond. Duffeld v. Smith (1818),

Serg. & R. (Pa.) 590, 593. See, also, Mills v. Martin (N. Y. 1821), 19 Johns. 7, as to amenability of militiamen to laws of United States in times of peace and when not in the service or pay of the United States.

Suppressing insurrection. The authority of the United States to suppress the rebellion is found in the power to suppress

ipsurrection and carry on war. Texas v. mies. The fact that the governor was White (1868), 7 Wall. 700, 727, 19 L. Ed. lawfully elected and qualified, and that 227.

the militia were lawfully organized and Authority to suppress rebellion is found called out, furnishes no excuse or claim for in the power to suppress insurrection and compensation to those who knowingly supcarry on war; and authority to provide for plied them with the means of prosecuting the restoration of State governments, under hostilities, though a warrant on the Treasthe Constitution, when subverted and over- ury was issued under the forms of law. thrown, is derived from the obligation of State ex rel. Blakeman v. Hays (1872), 49 the United States to guarantee to every Mo, 604, State in the Union a republican form of The acts of an officer, performed after Government. The latter, indeed, in the the President of the United States has de. case of a rebellion which involves the goy- clared the county to be lo insurrection and ernment of a State, and, for the time, ex- rebellion, are void. Hawver v. Seldenridge cludes the national authority from its lim- (1867), 2 W. Va, 274, 94 Am. Dec. 532. its, seems to be a necessary complement to Where a State government is in insur. the other. Texas 0. White (1868), 74 rection or rebellion and committing acts of U. S. (7 Wall.) 700, 19 L. Ed. 227.

hostility agalost the Government of the The authority to make war to suppress

United States, and the same is so declared rebellion is derived from this clause, and by the political department of the United the provision in art. 2, sec. 3, that the Presi- States Government, the acts of all officers dent shall take care that the laws be faith- claiming allegiance to and adhering to the fully executed. Norris v. Doniphan (1863), State government are null and void. Jd. 61 Ky, (4 Metc.) 385.

Although a trespass is committed by order Act of Mar. 3, 1863, aut horizing the rais

of the authorities of a State acting in puring of a national military force, to suppresz suance of the law thereof, it can not be an existing rebellion, by a draft, is not justified when the State is engaged in rerepugnant to this clause, by interfering with bellion against the Government and laws the reserved rights of the States over their of the United States. Lively v. Ballard own militia.

(1868) 2 W, Va. 496, Act of government or officers of States Repelling invasion.--The power to repel in insurroction or rebellion.- Where the invasion includes the power to provide militia of a State are employed by the against the danger of invasion. Martin v. governor to resist the authority of the Mott (1827), 12 Wheat, 19, 28, 6 L. Ed. United States, they become public ene- 437.

2787. Troops to have the right of way.-That the United States forces or troops, or any portion of the militia, parading, or performing any duty according to law, shall have the right of way in any street or highway through which they may pass: Provided, That the carriage of the United States mails, the legitimate functions of the police, and the progress and operations of fireengines and fire departments shall not be interfered with thereby. Sec. 47, act of Mar. 1, 1889 (25 Stat. 779)

Change the number of section forty-seven to "fifty." Act of Feb. 18, 1909 (35 Stat. 634), amending ser. 47, act of Mar. 1, 1889 (25 Stat. 779).

As the above appears in an act having relation to the National Guard of the District of Columbia it may be inferred that the streets, etc., mentioned are those of the said District.

2788. Presence of troops at polls.--Every officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, who orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held in any State, unless such force be necessary to repel armed enemies of the United States, shall be fined not more than five thousand dollars and imprisoned not more than five years. Scc. 22, Criminal Code, act of Mar. 4. 1909 (35 Stat. 1092).

2789. Coercion of voters.~-Every officer or other person in the military or naval service of the United States who, by force, threat, intimidation, order, advice, or otherwise, prevents, or attempts to prevent, any qualified voter of any State from freely exercising the right of suffrage at any general or special election in such State shall be fined not more than five thousand dollars and imprisoned not more than five years, Sec. 23, Criminal Code, act of Mar. 4, 1909 (35 Stat. 1092).

2790. Prescribing qualification of electors.--Every officer of the army or navy who prescribes or fixes, or attempts to prescribe or fix, whether by proclamation, order, or otherwise, the qualifications of voters at any election in any State shall be punished as provided in the preceding section. Sec. 24, Criminal Code, act of Mar. 4, 1909 (35 Stat, 1092).

2791. Coercion of an election official.-Every officer or other person in the military or naval service of the United States who, by force, threat, intimidation, order, or otherwise, compels, or attempts to compel, any officer holding an election in any State to receive a vote from a person not legally qualitied to vote, or who imposes, or attempts to impose, any regulations for conducting any general or special election in a State different from those prescribed by law, or who interferes in any manner with any officer of an election in the discharge of his duty, shall be punished as provided in section twenty-three. Sec. 25, Criminal Code, act of Mar. 4, 1909 (35 Stat. 1093).

2792. Penalty for interference with elections. Every person convicted of any offense defined in the four preceding sections shall, in addition to the punishment therein prescribed, be disqualified from holding any office of honor, profit, or trust under the United States; but nothing therein shall be construed to prevent any officer, soldier, sailor, or marine from exercising the right of suffrage in any election district to which he may belong, if otherwise qualified according to the laws of the State in which he offers to vote. Sec. 26, Criminal Code, dot of Mar. 4, 1909 (35 Stat. 1093).

2793. Protection of civil rights.--It shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as may be necessary to aid in the execution of judicial process issued under any of the preceding provisions, or as shall be necessary to prevent the violation and enforce the due execution of the provisions of this Title. R. S. 1989.

Notes of Decisions.

Operation of statute.- Sec. 2812, post, forbidding the employment of the army as a posse comitatus for the purpose of executing the laws, does not abridge the power

to use any part of the land or naval forces, or militia, for the purposes set forth in this section. (1890) 19 Op. Atty. Gen. 570.

2794. Prevention of peonage.-- The holding of any person to service or lalvor under the system known as peonage is abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void. R. S. 1999.

Every person in the military or civil service in the Territory of New Mexico shall aid in the enforcement of the preceding section. R. S. 1991.

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