Insurrection in a State. form; in which case, it would cover acts performed by the party as an officer but no more, and of course would not apply to any advances improperly made to him when he had ceased to be a public officer, and could have received the money only in a private capacity. I do not affirm that a bond could not be so drawn as to cover any advances thus irregularly and improvidently made to an Agent of the Government. It appears, however, in the present case, by new evidence filed, that the Agent was in fact in office when he received the money in question. Measures had been initiated for his removal, but were not then persisted in, and he continued in office for nearly a year subsequent to that time. I advise that you furnish the proper District Attorney with such evidence on the subject as may be found in the Department; and cause to be obtained, if necessary, testimony of persons cognisant of the facts, more especially of the Commissioner of Indian Affairs at the time, the Hon. William Medill, of Ohio. I am, very respectfully, F. B. STREETER, Esq., C. CUSHING. Solicitor of the Treasury. INSURRECTION IN A STATE. Consideration of the circumstances in which the President may employ the military and naval force of the Union to suppress insurrection in one of the States. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to lay before you, herewith, conclusions of law on the questions presented by the application of the Governor of the State of California, concerning which you have required my official opinion. It appears by the representation of the Governor, and by other documents communicated on the subject, that, on the 26th Insurrection in a State. of May last, there was formed, in the city of San Francisco, a voluntary association, composed of persons whose names are not disclosed, styling themselves a "Vigilance Committee," who proceeded to organize a numerous military force of all arms, to establish a strongly fortified post in the heart of the city, and by these means to overawe and supersede the city and county officers, and to usurp the local authority of the State. It further appears that the professed inducement of this combination and organization was the commission, in the city of San Francisco, of an act of individual homicide; that the so called committee overpowered the sheriff, abstracted from the prison by force the alleged murderer, and also another person under commitment on the charge of murder, and took the lives of said persons by hanging them publicly, without law, in front of the head-quarters of the association in San Francisco. It further appears that the committee thereafter continued to assume and exercise a summary police jurisdiction in the city and county of San Francisco, making domiciliary visits, arresting by force numerous individuals, subjecting the same to imprisonment or deportation without law, and, at the date of the Governor's representation, the 19th of June last, still holding the military possession of the city, with daily augmentation of armed force, and with no definite indication of any purpose to desist from the usurped exercise of the public authority of the State. It further appears that most of the organized companies of militia in the city of San Francisco uphold the proceedings of the committee, and yield obedience to its orders, in preference to, and in open disregard of, those of the constituted military authorities of the State. It does not appear distinctly how far this outward submission of the inhabitants of San Francisco to the assumed authority of the committee is attributable to approbation of its acts, and how far to want of preparation and means to withstand it; nor is that material to the questions of law involved; since, whatever may be the local opinion regarding the committee, its organization and its acts do not the less constitute a lawless usurpation of the powers of the State. Insurrection in a State. Thus it appears that, independently of the specific acts of violation of law perpetrated by the committee, there is peculiar aggravation of illegality in its organization and action, by reason of the secrecy of its direction, its demonstrative ostentation of military force, the excessive disproportion of the means which it employs to its professed ends, and the duration of its violent power. If circumstances are supposable in which the exertion of illegal force for a moment may be justified, or at least extenuated, none are possible, which suffice to warrant the permanent substitution of such force in the place of constitutional government. It also requires to be stated that, while the so-called Vigilance Committee is acting in usurpation of public right, and assuming to punish, at its mere discretion, alleged malefactors, without lawful authority, and in contempt of the established forms of justice; while its illegal power is rendered still more objectionable by reason of its anonymous, secret, and irresponsible constitution; and while the good which it may have done, or which it professes to aim to do, in the punishment of a few alleged criminal or disorderly persons, is altogether incommensurate with the extraordinary means adopted for its accomplishment ;— and while these considerations tend to subject the committee to suspicion of unavowed ulterior purposes;-still there is no evidence, in the documents referred, or in other authentic information, that, in what has thus occurred at San Francisco, there has been committed or threatened any act of resistance or obstruction to the Constitution, laws, or official authority of the United States. But the incidents in question exhibited a case of such persistent disturbance of public tranquillity, as to have constrained the interposition of the Governor of the State, who, on the 8th of June, issued his official proclamation, setting forth the existence of the unlawful combination, calling on its members to disband, and summoning to arms the militia of the State, for the purpose of restoring public order, and of enforcing obedience to law in the city and county of San Francisco. Upon these facts, the Governor of the State now represents Insurrection in a State. to you, that insurrection exists therein, and prefers the following requests: 1. That you will transmit orders to the officer of the United States commanding the Pacific division, to issue to the State, on the requisition of the Governor, such arms and ammunition as may be needed for the object of suppressing the said insurrection. 2. That you will transmit orders to the said commanding officer to render such assistance in arms and ammunition at any future time, as may be required by the Governor for the purpose of enforcing obedience to the constitution and laws of the State. Such, specifically, is the tenor of this application; and the question is of your constitutional and legal power in the premises. With reference to such a case, of insurrection in a State against the government thereof, the Constitution declares that Congress shall have power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The present is one of the forms of the second of the three specified emergencies, namely, insurrection against, not the Government of the United States, but that of a State. I do not perceive in the Constitution any other provision of specific pertinency; but something will be said in the sequel regarding the relation of Congress and of the President, in such a case, to the military and naval force of the United States. As to the clause of the Constitution, which makes it the duty of the President "to take care that the laws be faithfully executed," that, it is apprehended, refers primarily to the laws of the United States, and to those of a State or Territory only in the contingency when the case of insurrection therein is presented according to the Constitution and to acts of Congress. The Congress of the United States has executed that clause of the Constitution, which empowers it "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," and also its general power Insurrection in a State. in the same relation over the federal, military, and naval forces, by the enactment of two subsisting laws, the material parts of which are as follows: The act of February 28, 1795, entitled an act to provide for calling forth the militia for the purposes, and in the words of the Constitution, enacts that, "in case of an insurrection in any State against the government 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 such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection." And it further enacts, "that whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse and retire peaceably to their respective abodes within a limited time." (i Stat. at Large, p. 424.) The act of March 3, 1807, entitled an act authorizing the employment of the land and naval forces of the United States in case of insurrections, provides: "That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual State or Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurgents, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States as shall be judged necessary, having first observed all the prerequisites of the law in that respect." (ii Stat. at Large, p. 443.) These are the only subsisting provisions of statute material to the subject-matter of inquiry. It is observable that the statute does not, by expression, empower the President to call forth the militia of the State in which the insurrection exists, but only, upon the application of such State, to call forth the militia of some other State or States. It presumes, of course, that, when occasion arises, the militia of the particular State will be brought into action by its own exe |