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the government in action. Instant' obedience must be the requirement in certain contingencies. The power to give orders and the duty to obey such orders is the characteristic situation in administration.
$ 89. Coercion.
This power in the administration may go to any extent that is necessary-even to killing. The leading case for that is In re Neagle, 135 U'. s. 1 (1890). David Neagle, a deputy marshal of the United States, was brought into the United States court from the custody of a ('alifornia court upon his averment that he was held in imprisonment for an act done in execution of the laws of the United States. Neagle had killed a former judge, Terry, who had made an attack upon Mr. Justice Field of the Supreme Court of the United States. An order was entered discharging Neagle from custody upon a finding that he was held in custody for an act done in pursuance of a law of the United States.
Mr. Justice MILLER, after stating the case as above, said: In the view we take of the Constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the Marshal to be derived from the general scope of his duties, is law. It would seem that the argument might close here. If the duty of the United States to protect its officers from violence even to death in discharge of duties which the law has laid upon them be established, and Congress has made the writ of habeas corpus one of the means by which this protection is efficient, and if the facts show that the prisoner in this case was thus acting in accordance with his duty-no murder can be conceived of as committed. The prisoner should be discharged by this writ of habeas corpus, because he was not liable to answer in the courts of California for the part he had in that transaction.
69 COMMAND.-United States v. Klein, 13 Wall. 137; Mitchell v. Harmony, 13 How. 115; Hawkins v. Nelson, 40 Ala. 553; Worthy v. Kinamon, 44 Ga. 297; La Salle County v. Simmons, 10 Ill. 513; Logansport v. Justice, 74 Ind. 378; Terrill v. Rankin, 2 Bush, 453; Ford v. Surget, 46 Miss. 130; Drehman v. Stifel, 41 Mo. 184; Branner v. Felkner, 1 Heisk. 228; Koonce v. Davis, 72 N. C. 218.
The present principle may then be stated in as extreme a form as this: Whenever it is necessary for the enforcement of a law that a certain thing should be done by an officer in order to carry it into execution, that thing may be done. This is found laid down at the time of the fugitive slave law in an opinion on the Extradition of Fugitives, 6 Opin. 466 (1854). It appeared that on the 2nd of June, 1851, a warrant was issued from the Commissioner of the United States in the city of Chicago for the apprehension of a fugitive slave under which the Marshal had arrested the negro. Thereupon, a rescue being threatened, the Commissioner and the Marshal deemed it necessary and proper to call to their assistance a party of men, police and militia, as a guard. For the subsistence of this guard the Marshal provided. He now claims allowance for their compensation.
In a learned opinion CUSHING, then Attorney-General, upheld the legality of this method of executing the law; in substance, he said: A Marshal of the United States, when opposed in the execution of his duties by unlawful combinations, has authority to summon the entire force of his precinct as a posse comitatus. This ancient power exists today. This authority comprehends not only by
standers and citizens generally, but any and all organized armed forces, whether militia of the state or forces of the United States. If the object of resistance to the Marshal be to obstruct and to defeat the execution of the provision of an act of Congress, the expenses of such posse comitatus are properly chargeable to the United States. 70
$ 90. Ordinary process.
The basis of all administration is found in the law itself. If the law is absolute, what is commanded must be done; if the law is specific, that must be performeel that is directed-to the extent that a duty is ministerial, mechanical execution is required. This is not a question in such a case of the better method; that method which is indicated must be followed. This is by means uncommon that the law should be explicit even to the extent of prescribing methods of administration. Even administrative statutes arranging a whole course of administration are sometimes enacted. An example of this is the United States Customs Administrative Act of 1890.
On the other hand, the law may not be absolute, but conditional; in which case the officer must decide in what way the law is to be enforced. That is, to the extent to which a duty is discretionary, the officer has the power to decide upon the method to be used in administration. Upon the whole, this is the more usual. The law usually leaves the method of execution to the administration. This is the right of the matter in theory, since it observes the separation of powers in leaving to the administration its proper function. It is expedient also, since it gives over the methods of administration to those that understand it.71
70 COERCION.-Rex v. Pinney, 5 C. & P. 254; Lamar v. Browne, 92 U. S. 194; In re Neagle, 135 U. S. 1; Logan v. United States, 144 U. S. 295; In re Debs, 158 U. S. 579; Holmes v. Sheridan, 1 Dillon, 351; United States v. Mullin, 71 Fed. 686; Parham y. Justices, 9 Ga. 341; Highway Com'rs v. Ely, 54 Mich. 175; Hogue v. Penn, 3. Bush, 663; McLaughlin v. Green, 50 Miss. 453; Bryan v. Walker, 64 N. C. 141.
These cases where force must be met with force involve the authority of peace officers more often than the power of higher officers of the administration. These public officers are at all times confronted with the necessity to determine on the instant whether they will use force or not and how much force they must use.
Upon these questions of the law governing execution there is much law; and upon all these points the law is very exacting of the officer. He must not use force at all unless there is breach of the peace; more than that, if he must use force he may not use more force than is absolutely necessary.
For example, upon the question of the authority of an officer to arrest without warrant there is much special law. A simple case in point is Boyleston v. Kerr, 2 Daly, 220 (1867)—an action for false imprisonment against a policeman. The testimony was to the effect that Boylston had gone into the cafe of Kerr and had ordered a luncheon. Boylston was given a check for forty cents, the amount to which he had eaten; but at the counter he substituted a check for fifteen cents, which he had obtained. After he had reached the street Kerr called out for a policeman. The policeman arrested Boylston, which is the imprisonment complained of.
71 ORDINARY PROCESS.-Beckwith v. Philby, 6 B. & C. 635; Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272; Lawton v. Steele, 152 U. S. 133; The Bolina, 1 Gall. 75; Knot v. Gay, 1 Root 66; Long v. State, 12 Ga. 293; Commissioners v. Reeves, 148 Ind. 472; McMillen v. Anderson, 27 La. Ann. 19; Kellar v. Savage, 20 Me. 199; Tellefsen v. Fee, 168 Mass. 188; Burroughs v. Eastman, 101 Mich. 426; Nelson Lumber Co. v. McKinnon, 61 Minn. 222; Ela v. Shepard, 32 N. H. 277; McMahon v. Palmer, 102 N. Y. 176; State v. Wilson, 121 N. C. 454; Cleveland v. Tripp, 13 R. I. 64; Musser v. Adair, 55 Oh. St. 472; State v. Sponaugle, 45 W. Va. 430.
DALY, the presiding Justice, disposed of the case briefly: As the arrest was made without a warrant, the defendant, as a party assisting in making an unlawful arrest, was liable to an action by the person arrested. There was no breach of the peace to authorize an arrest without a warrant. The only rule in the matter is that the police officer virtute officii may arrest a person for a breach of the peace committed in his presence. The arrest of the plaintiff was therefore unlawful. This is a strict, but a necessary rule for the protection of the citizen.
There is a mitigation of this strict rule in favor of the public officer—a rule of administrative law, therefore, in the strictest sense of that term. That is well stated in Beckwith v. Philby, 6 B. & C. 635 (1827). This was an action for assaulting, beating, handcuffing and imprisoning the plaintiff; and keeping and detaining him, handcuffed and imprisoned, for forty-eight hours upon a false charge that he had been apprehended in the course of a felony. The officer pleaded that he had reasonable and probable cause in making the arrest.
Lord TENTERDEN said: The only question of law in