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insurrection and carry on war. Texas v. White (1868), 7 Wall. 700, 727, 19 L. Ed. 227.
Authority to suppress rebellion is found in the power to suppress insurrection and carry on war; and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown, is derived from the obligation of the United States to guarantee to every State in the Union a republican form of Government. The latter, indeed, in the case of a rebellion which involves the government of a State, and, for the time, excludes the national authority from its limits, seems to be a necessary complement to the other. Texas v. White (1868), 74 U. S. (7 Wall.) 700, 19 L. Ed. 227.
The authority to make war to suppress rebellion is derived from this clause, and the provision in art. 2, sec. 3, that the President shall take care that the laws be faithfully executed. Norris v. Doniphan (1863), 61 Ky. (4 Metc.) 385.
Act of Mar. 3, 1863, authorizing the raising of a national military force, to suppress an existing rebellion, by a draft, is not repugnant to this clause, by interfering with the reserved rights of the States over their own militia.
Act of government or officers of States in insurrection or rebellion. Where the militia of a State are employed by the governor to resist the authority of the United States, they become public ene
mies. The fact that the governor was
The acts of an officer, performed after
Where a State government is in insurrection or rebellion and committing acts of hostility against the Government of the United States, and the same is so declared by the political department of the United States Government, the acts of all officers claiming allegiance to and adhering to the State government are null and void. Id.
Although a trespass is committed by order of the authorities of a State acting in pursuance of the law thereof, it can not be justified when the State is engaged in rebellion against the Government and laws of the United States. Lively v. Ballard (1868) 2 W. Va. 496.
Repelling invasion.-The power to repel invasion includes the power to provide against the danger of invasion. Martin v. Mott (1827), 12 Wheat, 19, 28, 6 L. Ed. 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 sec. 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. Sec. 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 qualified 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, act 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 labor 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. 1990. 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.
Notes of Decisions.
Operation of statute.-Though the system of peonage in New Mexico was the moving cause for the enactment of this section, and its title and the Senate debates showing that to be the fact, the act does more than merely abolish an existing system, and makes criminal certain acts which would tend to sustain or reestablish such a system; R. S. 5526 providing for the punishment of any person who holds, arrests, returns, or causes to be returned, any person "to a condition of peonage." In re Lewis (C. C. 1902), 114 Fed. 963. Validity. This section is a valid exercise of power granted to Congress by Const. U. S. Amend. 13. Clyatt v. U. S. (1905), 25 Sup. Ct. 429, 430, 197 U. S. 207, 49 L. Ed. 726; U. S. v. McClellan (D. C. 1904), 127 Fed. 971, 973, 979.
Clyatt v. U. S. (1905), 25 Sup. Ct. 429, 430, 197 U. S. 207, 49 L. Ed. 726; [C. S. p. 4809].
Peonage, within the meaning of this section, is the holding of any person to service or labor to pay a debt due from the laborer to the employer, when such employee desires to leave the employment before his debt is paid off; and it is immaterial whether the contract of employment was voluntarily made by the laborer or not, and whether it was made for a present or preexisting consideration. Peonage Cases (D. C. 1905), 136 Fed. 707, 708.
Violation of statute-What constitutes.The holding of another in a state of peonage, whether sanctioned or not by munielpal or State law, is included in the probibition in this section against peonage in any State or Territory. Clyatt v. U. S. (1905), 25 Sup. Ct. 429, 431, 197 U. S. 207, 49 L. Ed. 726.
2795. Protection of Yellowstone National Park.-The Secretary of War, upon the request of the Secretary of the Interior, is hereby authorized and directed to make the necessary details of troops to prevent trespassers or intruders from entering the park for the purpose of destroying the game or objects of curiosity therein, or for any other purpose prohibited by law, and to remove such persons from the park if found therein. Act of Mar. 3, 1883 (22 Stat. 627).
This provision was not repealed by act of May 7, 1894, by express provision of sec. 10 of that act (28 Stat. 75).
2796. Protection of national parks in California.-The Secretary of War, upon the request of the Secretary of the Interior, is hereafter authorized and directed to make the necessary detail of troops to prevent trespassers or intruders from entering the Sequoia National Park, the Yosemite National Park, and the General Grant National Park, respectively, in California, for the purpose of destroying the game or objects of curiosity therein, or for any other purpose prohibited by law or regulation for the government of said reservations, and to remove such persons from said parks if found therein. Act of June 6, 1900 (31 Stat. 618).
2797. Protection of the rights of a discoverer.-The President is authorized, at his discretion, to employ the land and naval forces of the United States to protect the rights of the discoverer or of his widow, heir, executor, administrator, or assigns. R. S. 5577.
2798. Military forces employed to enforce laws concerning Indians.-The mili tary 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 pro>ceeded 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. R. S. 2150.
Notes of Decisions.
Employment and authority of military force. The Army is the proper force to employ when Intruders and trespassers who go on the reservation are to be ejected therefrom. U. S. v. Crook (C. C. 1879), Fed. Cas. No. 14,891.
The Territory of Alaska, under act of Mar. 3, 1873, became, as to the introduction of liquors," Indian country," and the military force of the United States may be employed for the arrest of persons violating the Indian intercourse act of 1834. Carr (D. C. 1875), Fed. Cas. No. 2,432.
The military power may be employed to effect the removal of a person from an Indian reservation in a proper case, but the person thus removed can not be held by the military authorities. U. S. v. Crook (C. C. 1879), Fed. Cas. No. 14,891.
Where certain persons claiming to belong to the Cherokee Nation attempted to settle on certain lands, their removal therefrom by the military authorities held justifiable. (1880) 16 Op. Atty. Gen. 470. See Waters v. Campbell (C. C. 1877), Fed. Cas. No. 17,265, holding that a person arrested by military force may be confined in the military prison, but he can not be lawfully required to labor or perform any duty other than taking care of his person.
The President may, under section 2819, post, direct the military forces to render the marshal such aid as may be necessary to enable him to maintain the peace and enforce the laws of the United States in that Territory. (1889) 19 Op. Atty. Gen. 293.
Persons apprehended by the military for unlawful traffic with Indians, and also property taken with them, should be placed in the custody of the marshal, whereupon the United States attorney should institute proceedings for the penalty and forfeiture of the property. Where the persons have also violated articles of war, they may be tried by and punished by court-martial, or turned over to the civil authorities to be proceeded against. (1871) 13 Op. Atty. Gen. 470.
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 sec. 2152 of the Revised Statutes. 21 Op. Atty. 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 sec. 23 of the act of June 30, 1834 (4 Stat. 732; R. S. 2150), act as officers of civil law. To justify such arrests there must be strong probable cause. In re Carr, 3 Sawyer, 316.
2799. Limit of detention in the Indian country.-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. R. S. 2151.
Notes of Decisions.
Detention of persons arrested by military force.-A person arrested by military force is not a military prisoner, subject to the articles of war, but a citizen charged with a nonmilitary crime, and
must be removed for trial by the civil authorities within five days from his arrest or discharge, and his detention thereafter under any circumstances is unlawful. Waters v. Campbell (C. C. 1877), Fed. Cas.
No. 17,265; In re Carr (D. C. 1875), Fed.
The Military Department has no authority to hold a person apprehended for
being unlawfully in the country indefi nitely as a prisoner, nor to destroy prop erty so found. U. S. v. Crook (D. C. 1875), 179 Fed. 391.
2800. Arrest of Indians.-The superintendents, agents, and sub-agents 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. R. S. 2152.
The word "superintendents has become inoperative, no appropriations for such superintendents having been made since 1877 (19 Stat. 271).
Notes of Decisions.
Employment and authority of military
force. The troops of the United States can not be employed in the Indian Territory for the purpose of assisting in the preservation of peace and the arrest of bandits and outlaws unless they are trespassing on Indian country, or absconding offenders within this section.
(1894) 21 Op. Atty. Gen, 72.
A military officer, unless he be an Indian agent, or be called on to act by such agent, has no power to arrest fugitives from justice in a State who have escaped into the Indian Territory. Such persons may be re moved from the territory as intruders, and surrendered to the State authorities, by the proper Indian agent. (1877) 15 Op. Atty. Gen. 601.
2801. Live stock of restricted Indians.-That where restricted Indians are in possession or control of live stock purchased for or issued to them by the Government, or the increase therefrom, such stock shall not be sold, transferred, mortgaged, or otherwise disposed of, except with the consent in writing of the superintendent or other officer in charge of the tribe to which the owner or pos sessor of the live stock belongs, and all transactions in violation of this provi sion shall be void. All such live stock so purchased or issued and the increase therefrom belonging to restricted Indians and grazed in the Indian country shall be branded with the I D or reservation brand of the jurisdiction to which the owners of such stock belong, and shall not be removed from the Indian country except with the consent in writing of the superintendent or other officer in charge of the tribe to which the owner or possessor of such live stock belongs, or by order of the Secretary of War, in connection with the movement of troops. Every person who violates the provisions of this section by selling or otherwise disposing of such stock, purchasing, or otherwise acquiring an interest therein, or by removing such stock from the Indian country, shall be fined in any sum not more than $1,000, or imprisoned for not more than six months, or both such fine and imprisonment. R. S. 2138, as amended by act of June 30, 1919 (41
As originally enacted, R. S. 2138 was as follows:
"Every person who drives or removes, except by authority of an order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops, any cattle, horses, or other stock from the Indian country for the purposes of trade or com merce, shall be punishable by imprisonment for not more than three years, or by a fine of not more than five thousand dollars, or both."
2802. Sale of live stock of Indians.-The agent of each tribe of Indians, lawfully residing in the Indian country, is authorized to sell for the benefit of such