1410. Apprehension by military force. The military forces of the United States may be employed in such manner and under such regulations as the President may direct--

First. In the apprehension of every person who may be in the Indian country in violation of law; and in conveying him immediately from the Indian country, by the nearest convenient and safe route, to the civil authority of the Territory or judicial district in which such person shall be found, to be proceeded against in due course of law;

Second. In the examination and seizure of stores, packages, and boats, authorized by law;

Third. In preventing the introduction of persons and property into the Indian country contrary to law; which persons and property shall be proceeded against according to law;

Fourth. And also in destroying and breaking up any distillery for manufacturing ardent spirits set up or continued within the Indian country. Sec. 2150, R. S.

1411. Limit of detention.-No person apprehended by military force under the preceding section shall be detained longer than five days after arrest and before removal. All officers and soldiers who may have any such person in custody shall treat him with all the humanity which the circumstances will permit. Sec. 2151, R. S.

There is not in the treaties with the Indians of the Indian Territory, or sections 2147, 2150, 2152, Revised Statutes, any express authority vested in the President to use the Army in such Territory for the apprehension of local robbers or thieves, etc., or for the protection of corporations or individuals from such robbers or other outlaws, except in so far as such offenders may be persons who are in, or are attempting to enter the Indian country "contrary to law," or are Indians charged with crime. (Sec. 2152, R. 8.) In these cases they could be apprehended by the military forces, but only by virtue of and conformably to the statutes cited, and not (unless they be Indians) because they are train robbers or other offenders against the local peace or laws. (Dig. J. A. G. 100, C.)

The troops of the United States can not be employed in the Indian Territory for the purpose of assisting in the preservation of the peace and the arrest of bandits and outlaws unless they are trespassing upon Indian country, or absconding offenders within the provisions of section 2152 of the Revised Statutes. (21 Opin. Att. Gen., 72.)

Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians for actual wrongs committed in time of peace under orders emanating from a source which is itself without authority in the premises. Hence a military officer seizing liquors supposed to be in Indian country when they are not is liable to an action as a trespasser. (Bates v. Clark, 95 U. S., 204.)

Officers of the Army making arrests under section 23 of the act of June 30, 1834 (4 Stat. 732; see. 2150, R. S.), act as officers of civil law. To justify such arrests there must be strong probable cause. (In re Carr, 3 Sawyer, 316.)

But note that, in view of the provisions of section 2151, Revised Statutes, an officer of the Army who detains a person arrested under section 2150 longer than five days before "conveying him to the civil authority," or subjects him when in arrest to unreasonably harsh treatment, renders himself liable to an action in damages for false imprisonment. (In re Carr, 3 Sawyer, 318; Waters t. Campbell, 5 id., 17.)

1412. Arrest of Indians.-The superintendents, agents, and subagents shall endeavor to procure the arrest and trial of all Indians accused of committing any crime, offense, or misdemeanor, and of all other persons who may have committed crimes or offenses within any State or Territory, and have fled into the Indian country, either by demanding the same of the chiefs of the proper tribe, or by such other means as the President may authorize. The President may direct the military force of the United States to be employed in the apprehension of such Indians, and also in preventing or terminating hostilities between any of the Indian tribes.1 Sec. 2152, R. S.

1413. Prohibition of permits to Indians to go into Texas.-All officers and agents of the Army and Indian Bureaus are prohibited, except in a case specially directed by the President, from granting permission in writing or otherwise to any Indian or Indians on any reservation to go into the State of Texas under any pretext whatever; and any officer or agent of the Army or Indian Bureau who shall violate this provision shall be dismissed from the public service. And the Secretary of the Interior is hereby directed and required to take at once such other reasonable measures as may be necessary in connection with said prohibition to prevent said Indians from entering said State. Sec. 4, Act of May 11, 1880 (21 Stat. 132).

1Held that in the execution of process of arrest under the act of March 3, 1885 (rendering Indians amenable to the criminal laws of the Territories), the military may, by direction of the President, legally be employed to aid the civil officials in such arrests, such employment being expressly authorized by section 2152, Revised Statutes. (Dig. J. A. G., 100, C.)

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

*

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.3-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. Sec. 5297, R. S.

'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., 65; 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. 1347– 1349.

*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.

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 President, 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