DOMESTIC DISTURBANCES 199 * * * decided upon would therefore be at long range period b. The ensuing proclamation of the President was as follows: "WHEREAS, the Governor of the State of West Virginia has represented that domestic violence exists in said State which the authorities of said State are unable to suppress, and "WHEREAS, it is provided in the Constitution of the United States that the United States shall protect each State in this Union, on application of the legislature, or of the executive when the legislature can not be convened, against domestic violence, and "WHEREAS, by the law of the United States in pursuance of the above it is provided that in all cases of insurrection in any State or of obstruction of the laws thereof it shall be lawful for the President of the United States on application of the legislature of such State or of the executive when the legislature cannot be convened to call forth the militia of any other State or States or to employ such part of the land and naval forces of the United States as shall be judged necessary for the purpose of suppressing such insurrection and causing the laws to be duly executed; and "WHEREAS, the legislature of the State of West Virginia is not now in session and cannot be convened in time to meet the present emergency, and the Executive of said State under Section 4 of Article IV of the Constitution of the United States and the laws passed in pursuance thereof, has made due application to me in the premises for such part of the military forces of the United States as may be necessary and adequate to protect the State of West Virginia and the citizens thereof against domestic violence and to enforce the due execution of the laws; and "WHEREAS, it is required that whenever it may be necessary, in the judgment of the President, to use the military forces of the United States for the purposes aforesaid he shall forthwith by proclamation command such insurgents to disperse and retire peaceably to their respective homes within a limited time; "NOW THEREFORE, I, WARREN G. HARDING, President of the United States, do hereby make proclamation and I do hereby command all persons engaged in said unlawful and insurrectionary proceedings to disperse and retire peaceably to their respective abodes on or before 12 o'clock noon of the ** * day of August, instant, and hereafter abandon said combinations and submit themselves to the laws and constituted authorities of said State; "And I invoke the aid and cooperation of all good citizens thereof to uphold the laws and preserve the public peace. "IN WITNESS WHEREOF, I have herewith set my hand and caused the seal of the United States to be affixed. 200 MILITARY AID TO THE CIVIL POWER "Done at the city of Washington, the *** day of August, in the year of our Lord one thousand nine hundred and twenty one, and of the Independence of the United States the one hundred and forty-sixth." c. The following letter of instructions from the War Department to the officer in charge is both interesting and instructive: "Copies of the President's proclamation and orders covering your movements have been sent to you. Your primary object is to suppress domestic violence and to establish and maintain order in the disturbed areas. You will cause to be obeyed the command of the proclamation that all persons engaged in unlawful and insurrectionary proceedings disperse and retire to their abodes and thereafter submit to the laws and constituted authorities of the State. You will make such dispensations as shall appear proper with respect to those who commit or may be about to commit physical violence. Any conduct on the part of any person, group or association whatever which in your judgment is contributory to or likely to be productive of domestic violence or the continuance of disorder, where such conduct is apparently lawful and would not be interfered with under normal conditions, will be immediately communicated to the War Department and you will await specific instructions unless the emergency is so grave as to necessitate a departure from that course. You will act throughout with the greatest discretion and caution not to incite what it is your mission to allay and prevent. In achieving your object, necessity is the measure of your authority. You will always countenance and support the civil officers in executing their laws and if necessary and required by them, you will protect and support and aid them in the execution of their duties. The civil functions and processes of the State will not be interfered with nor superseded if exercised effectually in the suppression of violence and the restoration of order. Persons arrested should either be admonished and sent home or if detained they should be delivered to the State authorities as soon as practicable. Where that course results in the release and return to scenes of disorder of persons whose presence there impedes the accomplishment of your purpose such persons may be retained in the military custody so long as the necessity exists. Persons in the military custody will be held by authority of the United States and with respect to writ of habeas corpus the directions of sections 477, 478, and 479, Court Martial Manual, will be followed, reporting each such case by telegraph direct to The Adjutant General of the Army." DOMESTIC DISTURBANCES 201 SECTION III When Federal Troops May be Employed Classes of emergencies requiring federal aid Principles governing the employment of federal troops The posse comitatus act The Constitution Other federal statutes Sudden emergencies Bringing about state of non-intercourse Paragraph 11 12 13 14 15 16 17 18 19 20 21 11. CLASSES OF EMERGENCIES REQUIRING FEDERAL AID.-Emergencies requiring federal aid are known as "minor emergencies" and "major emergencies." The former may be defined as localized disturbances in which the Regular forces are adequate to meet the situation; the latter may be defined as general disturbances, developing from a series of minor emergencies, in which the Regular forces are inadequate to meet the situation. 12. PRINCIPLES GOVERNING THE EMPLOYMENT OF FEDERAL TROOPS.-The broad general principle governing the employment of our federal forces in time of stress may be succinctly stated as follows: a. The Regular Army component is regarded as available and sufficient to meet minor emergencies without disturbing the social and industrial life of the country. b. The Regular Army and the National Guard components are regarded as sufficient to meet major emergencies, not involving the maximum effort, with a minimum disturbance of the social and industrial life of the country. c. In a national emergency involving the maximum effort, the Regular Army component would be available for prompt initial deployment, to be reinforced later by the National Guard component, thus permitting the mobilization and additional training of the Organized Reserve com 202 MILITARY AID TO THE CIVIL POWER ponent to proceed in an orderly and effective manner which should make it available for early deployment. d. Each component or increment can be employed separately or collectively, according to the requirements of the situation or war plan, subject to the following limitations: (1) When the National Guard is called into the service of the United States, it may be employed only in suppressing insurrection or repelling invasion, and may not be employed beyond the territorial limits of the United States. This last clause is to be construed rather liberally, however, so far as repelling an invasion is concerned. (See 29 Op. Atty. Gen. 324.) (2) When the National Guard is drafted into the service of the United States under the provisions of Section 111 of the National Defense Act, as amended by the act approved June 4, 1920, it may be employed in all respects and places that the Regular Army may be employed, and the same is true of increments of the unorganized militia inducted into the federal service by means of the draft. 13. ORDINARY SITUATIONS DISTINGUISHED FROM MARTIAL LAW.-a. Whenever the Army of the United States is employed in the suppression of internal disorders, it is either employed under some statutory authority as found in the Constitution and acts of Congress, or it is employed without any statutory sanction whatever. This distinction is important, for in the latter case the troops would not be operating under the law of the land but under the unwritten law of necessity, to which we give the name martial law. The subject of martial law is more fully discussed elsewhere in this text. (See Chapter V.) It is adverted to here only for the purpose of pointing out that we are to set it aside for the present and emphasize the suppression of internal disorders by means of the federal military forces employed in the manner prescribed by or pursuant to statute. b. The paragraphs which follow set out briefly those regulations and statutes which apply to the ordinary cases in which federal troops may be used in quelling domestic disturbances. DOMESTIC DISTURBANCES 203 14. ARMY REGULATIONS.-For a long time the Army Regulations (now AR 500-50, originally G. O. No. 49, Headquarters of the Army, July 7, 1878, published soon after the passage of the Posse Comitatus Act, quoted in the next paragraph below, and republished from time to time thereafter) have set forth very clearly the occasions when Congress has expressly authorized the use of the federal military forces for the purpose stated. These regulations, with certain exceptions (see par. 18, below), are merely extracts from federal statutes. 15. THE POSSE COMITATUS ACT.—a. Section 15 of the Act of June 18, 1878 (20 Stat. 152), known as the "Posse Comitatus Act," provides as follows: "From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by Act of Congress; * * * and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment." This act was suspended as to Alaska by the Act of June 6, 1900 (31 Stat. 330). See also paragraph 20 below as to Hawaii, Porto Rico, and the Philippines. b. Posse comitatus is a term used to denote the power of the county. The sheriff, or other peace officer, has authority by the common law, while acting under the authority of the writ of the United States, commonwealth, or people, as the case may be, and for the purpose of preserving the public peace, to call the posse comitatus to his aid. c. From the statute above quoted, it is seen that it is unlawful to use the Army of the United States for the purpose of executing the laws, except in such cases and under such circumstances as may be expressly authorized by the Constitution of the United States or by Act of Congress. We must, therefore, look to those sources to see what we may lawfully do. 16. THE CONSTITUTION.-a. It is provided in Article I, Section 8, of the Constitution of the United States that |