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.1 Sec. 5299, R. S.

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.2 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.)

1 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; the supreme law of the land."

shall be

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.)

'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."

1See 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.

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. Sec. 5306, R. S.

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

same, or suffers the same to be used or employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person engaged therein; or being the owner of any such property, knowingly uses or employs, or consents to such use or employment of the same, all such property shall be lawful subject of prize and capture wherever found; and it shall be the duty of the President to cause the same to be seized, confiscated, and condemned.1 Sec. 5308, R. S.

1428. Proceedings, where had.-Such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same [may] be seized, or into which they may be taken and proceedings first instituted. Sec. 5309, R. S.

1429. Property taken on inland waters.-No property seized or taken upon any of the inland waters of the United States by the naval forces thereof shall be regarded as maritime prize; but all property so seized or taken shall be promptly delivered to the proper officers of the courts. Sec. 5310, R. S.

1430. How proceedings shall be instituted.-The Attorney-General, or the attorney of the United States for any judicial district in which such property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts. Sec. 5311, R. S.

1431. Prohibition upon transportation of goods to aid insurrection. The Secretary of the Treasury is authorized to prohibit and prevent the transportation in any vessel, or upon any railroad, turnpike, or other road or means of transportation within the United States, of any property, whatever may be the ostensible destination of the same, in all cases where there are satisfactory reasons to believe that such property is intended for any place in the possession or under the control of insurgents against the United States, or that there is imminent danger that such property will fall into the possession or under the control of such insurgents; and he is further authorized, in all cases where he deems it expedient so to do, to require reasonable security to be given that property shall not be transported to any place under insurrectionary control, and shall not, in any way, be used to give aid or comfort to such insurgents; and he may establish all such general or special regulations as may be necessary or proper to carry into effect the purposes of this sec

1 See Mrs. Alexander's Cotton, 2 Wall., 404; Union Ins. Co. v. U. S., 6 Wall., 759; Armstrong's Foundry, 6 Wall., 766; Morris's Cotton, 8 Wall., 507; U. S. v. Shares of Capital Stock, 5 Blatch., 231.

2

See Francis v. U. S., 5 Wall., 338; Confiscation Cases, 7 Wall., 454; Miller v. U. S., 11 Wall., 268; Tyler v. Defrees, 11 Wall., 331.