This last section was repealed by act of July 29, 1861, "to provide for the suppression of the rebellion

must be purely defensive. It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof. It can do no more than what might and ought to be done by a civil posse, if a civil posse could be raised large enough to meet the same opposition. On such occasions especially, the military power must be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all."

On the 15th of April, 1861, President Lincoln issued a proclamation declaring that the laws of the United States were opposed, and their execution obstructed, in South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law, and calling forth the militia, to the number of 75,000, to suppress said combinations, and to cause the laws to be duly executed.

And on the 3rd of May the President, by an assumption of power not vested in him by the Constitution, issued the following proclamation:

"Whereas existing exigencies demand immediate and adequate measures for the protection of the national Constitution and the preservation of the national Union by the suppression of the insurrectionary combinations now existing in several States for opposing the laws of the Union and obstructing the execution thereof, to which end a military force in addition to that called forth by my proclamation of the fifteenth day of April in the present year, appears to be indispensably necessary:

"Now, therefore, I, Abraham Lincoln, President of the United States, and Commander-in-Chief of the Army and Navy thereof, and of the militia of the several States when called into actual service, do hereby call into the service of the United States forty-two thousand and thirty-four volunteers, to serve for the period of three years unless sooner discharged, and to be mustered into service as infantry and cavalry. The proportions of each arm and the details of enrollment and organization will be made known through the Department of War.

"And I also direct that the regular army of the United States be increased by the addition of eight regiments of infantry, one regiment of cavalry, and one regiment of artillery, making altogether a maximum aggregate increase of twenty-two thousand seven hundred and fourteen, officers and enlisted men, the details of which increase will also be made known through the Department of War.

"And I further direct the enlistment for not less than one or more than three years, of eighteen thousand seamen, in addition

against and resistance to the laws of the United States," etc., in which there was enacted legislation'

to the present force, for the naval service of the United States. The details of the enlistment and organization will be made known through the Department of the Navy.

"The call for volunteers, hereby made, and the direction for the increase of the regular army, and for the enlistment of seamen hereby given, together with the plan of organization adopted for the volunteers and for the regular forces hereby authorized, will be submitted to Congress as soon as assembled.

In the meantime I earnestly invoke the cooperation of all good citizens in the measures hereby adopted, for the effectual suppression of unlawful violence, for the impartial enforcement of constitutional laws, and for the speediest possible restoration of peace and order, and, with these, of happiness and prosperity throughout the country."

The following extract from a speech of Stephen A. Douglas, delivered in the Senate, March 15th, 1861, explains the necessity for this legislation; for if Stephen A. Douglas's view was correct, the President stood sorely in need of further power:

"But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the Army and Navy! These terms are used as freely and as flippantly as if we were in a military Government where martial law was the only rule of action, and the will of the monarch was the only law to the subject. Sir, the President can not use the Army, or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. What is that? If there be an insurrection in any State against the laws and authorities thereof, the President can use the military to put it down only when called upon by the State legislature, if it be in session, or, if it can not be convened, by the governor. He can not interfere except when requested. If, on the contrary, the insurrection be against the laws of the United States instead of a State, then the President can use the military only as a posse comitatus in aid of the marshal in such cases as are so extreme that judicial authority and the power of the marshal can not put down the obstruction. The military can not be used in any case whatever except in aid of civil process to assist the marshal to execute a writ. I shall not quote the laws upon this subject; but if gentlemen will refer to the acts of 1795 and 1807, they will find that under the act of 1795 the militia only could be called out to aid in the enforcement of the laws when resisted to such an extent that the marshal could not overcome the obstruction. By the act of 1807, the President is authorized to use the Army and Navy to aid in enforcing the laws in all cases where it was before lawful to use the militia. Hence the military power, no matter whether Navy,

now transferred to the Revised Statutes as section 5298, viz:

"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."

Of the legislation intended to invest the President with authority to make use of the Army in the execution of the laws this is the most frequently appealed to. In 1878, after the passage of the legislation of that year, above cited, Attorney General Devens gave his opinion that under section 5298 the President might use the Army to suppress "organized, armed and fortified resistance to the collection of internal revenue in Baxter County, Arkansas;" and in the same year regulars, volunteers, or militia, can be used only in aid of the civil authorities.

"Now, sir, how are you going to create a case in one of these seceded States where the President would be authorized to call out the military? You must first procure a writ from the judge describing the crime; you must place that in the hands of the marshal, and he must meet such obstructions as render it impossible for him to execute it; and then, and not till then, can you call upon the military."

116 Opin. Atty. Gen., 162.

the President issued his proclamation warning all persons in the Territory of New Mexico to desist from the obstruction of the laws of the United States, which by reason of unlawful assemblages and combinations of persons in arms it had become impracticable to enforce by the ordinary course of judicial proceedings-such proclamation being by law required before the military forces could be used.

In 1882, it appearing that the enforcement of the laws in the Territory of Arizona was "obstructed and resisted to such a degree by powerful combinations of outlaws and criminals, with whom even some of the local officers are alleged to be in league, that a state of lawlessness bordering on anarchy may be said to prevail," Attorney General Brewster held that the contingency was amply provided for by section 5298.'

In 1889, Attorney General Miller, in an opinion relating to resistance to the enforcement of the laws in the Indian Territory, said that it was certainly competent for the President, under section 5298, to direct the military forces to render such aid to the marshal, upon his request, as might be necessary to enable him to maintain the peace and enforce the laws of the United States in the Territory."

In 1892, the President issued a proclamation declaring that by reason of unlawful obstructions, combinations, and assemblages of persons, it had become impracticable to enforce by the ordinary course of judicial proceedings the laws of the United States within the District of Wyoming, the United States marshal being unable to execute the process of the

117 Opin. Atty. Gen., 333.

219 Opin. Atty. Gen., 293.

courts, and commanding all persons engaged in resistance to the laws and the process of the United States courts to disperse.'

On the 8th of July, 1894, the President issued the following proclamation:

"Whereas, by reason of unlawful obstructions, combinations and assemblages of persons, it has become impracticable in the judgment of the President to enforce by the ordinary course of judicial proceedings, the laws of the United States within the State of Illinois and especially in the city of Chicago within said State;

"And, whereas, for the purpose of enforcing the faithful execution of the laws of the United States and protecting its property and removing obstructions to the United States mails in the State and city aforesaid, the President has employed a part of the military forces of the United States;

"Now, therefore, I, Grover Cleveland, President of the United States, do hereby admonish all good citizens and all persons who may be or may come within the city and State aforesaid, against aiding, countenancing, encouraging, or taking any part in such unlawful obstructions, combinations and assemblages; and I hereby warn all persons engaged in or in any way connected with such unlawful obstructions, combinations and assemblages to disperse and retire peaceably to their respective abodes on or before twelve o'clock noon on the ninth day of July instant.

"Those who disregard this warning and persist in taking part with a riotous mob in forcibly resisting and obstructing the execution of the laws of the United

1See Winthrop's Military Law and Precedents, p. 1351.