jurisdiction cannot be acquired tortiously or by disseizin of the state; much less can it be acquired by mere occupancy, with the implied or tacit consent of the state, when such occupancy is for the purpose of protection.

Where, therefore, lands are acquired in any other way by the United States within the limits of a state than by purchase with her consent, they will hold the land subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings, with their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the state as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from state control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But, when not used as such instrumentalities, the legislative power of the state over the places acquired will be as full and complete as over any other places within her limits. As already stated, the land constituting the Fort Leavenworth military reservation was not purchased, but was owned by the United States by cession from France many years before Kansas became a state; and whatever political sovereignty and dominion the United States had over the place comes from the cession of the state since her admission into the Union. It not being a case where exclusive legislative authority is vested by the constitution of the United States, that cession could be accompanied with such conditions as the state might see fit to annex, not inconsistent with the free and effective use of the fort as a military post.

In the recent case of The Fort Porter Military Reservation, the opinion of the attorney general was in conformity with this view of the law. On the twenty-eighth of February, 1842, the legislature of New York authorized the commissioners of its land-office to cede to the United States the title to certain land belonging to the state within her limits, “for military purposes, reserving a free and uninterrupted use and control in the canal commissioners of all that may be necessary for canal and harbor purposes." Under this act the title was conveyed to the United States. The act also ceded to them jurisdiction over the land. In 1880 the superintendent of public works of New York, upon whom the duties of canal commissioner were devolved, informed the secretary of war that the interests of the state required that the land, or a portion of it, should be occupied by her for canal purposes, claiming the right to thus occupy it under the reservation in the act of cession. The opinion of the attorney general was, therefore, requested as to the authority of the secretary of war to permit the state, under these considerations, to use so much of the land as would not interfere with its use for military purposes. The attorney general replied that the United States, under the grant, held the land for military purposes, and that the reservation in favor of the state could be deemed valid only so far as it was not repugnant to the grant; that, hence, the right of the state to occupy and use the premises for canal or harbor purposes must be regarded as limited or restricted by the purposes of the grant;

that, when such use and occupation would defeat or interfere with those purposes, the right of the state did not exist; but, when they would not interfere with those purposes, the state was entitled to use so much of the land as might be necessary for her canal and harbor purposes. 16 Op. Attys. Gen. 592.

We are here met with the objection that the legislature of a state has no power to cede away her jurisdiction and legislative power over any portion of her territory, except as such cession follows under the constitution from her consent to a purchase by the United States for some one of the purposes mentioned. If this were so it would not aid the railroad company; the jurisdiction of the state would then remain as it previously existed. But, aside from this consideration, it is undoubtedly true that the state, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the general government. The jurisdiction of the United States extends over all the territory within the states, and therefore their authority must be obtained, as well as that of the state within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country. And so when questions arose as to the north-eastern boundary, in Maine, between Great Britain and the United States, and negotiations were in progress for a treaty to settle the boundary, it was deemed necessary on the part of our government to secure the co-operation and concurrence of Maine, so far as such settlement might involve a cession of her sovereignty and jurisdiction as well as title to territory claimed by her, and of Massachusetts, so far as it might involve a cession of title to lands held by her. Both Maine and Massachusetts appointed commissioners to act with the secretary of state, and after much negotiation the claims of the two states were adjusted, and the disputed questions of boundary settled. The commissioners of Maine were appointed by her legislature; and those of Massachusetts by her governor, under authority of an act of her legislature. It was not deemed necessary to call a convention of the people in either of them to give to the commissioners the requisite authority to act effectively for their respective states. 5 Webst. Works, 99; 6 Webst. 273.

In their relation to the general government, the states of the Union. stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country; and the two, the state and general government, may deal with each other in any way they may deem best to carry out the purposes of the constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative au

thority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the legislature of the state. Such cession is really as much for the benefit of the state as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the state. The military reservation of Fort Leavenworth was not, as already said, acquired by purchase with the consent of Kansas. And her cession of jurisdiction is not of exclusive legislative authority over the land, except so far as that may be necessary for its use as a military post; and it is not contended that the saving clause in the act of cession interferes with such use. There is, therefore, no constitutional prohibition against the enforcement of that clause. The right of the state to subject the railroad property to taxation exists as before the cession. The invalidity of the tax levied not being asserted on any other ground than the supposed exclusive jurisdiction of the United States over the reservation, notwithstanding the saving clause, the judgment of the court below must be affirmed.

Ordered accordingly.

8. COMMONWEALTH v. MURPHY.

(Supreme Judicial Court of Massachusetts, 1896. 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606.)

Appeal from superior court, Suffolk county; Edgar J. Sherman, Judge.

James A. Murphy was convicted for parading with an unauthorized body of men with firearms, and appeals. Affirmed.

ALLEN, J. The defendant is complained of for belonging to and parading with a certain unauthorized body of men with arms, which said body of men had associated themselves together as a company and organization for drill and parade with firearms, in violation of St. 1893, c. 367, § 124. He contends that this statute is in contravention of the seventeenth article of the declaration of rights, which declares that "the people have a right to keep and bear arms for the common defense." This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities and towns, unless authorized so to do by law. This is a matter affecting the public security, quiet, and good order, and it is within the police powers of the legislature to regulate the bearing of arms, so as to forbid such unauthorized drills and parades. Presser v. State of Illinois, 116 U. S. 252, 264, 265, 6 Sup. Ct. 580, 29 L. Ed. 615; Dunne v. People, 94 Ill. 120, 34 Am. Rep. 213. The protection of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legislature may regulate and limit the mode of carrying arms. Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Aymette v. State, 2 Humph.

(Tenn.) 154; Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52; Haile v. State, 38 Ark. 564, 42 Am. Rep. 3; English v. State, 35 Tex. 473, 14 Am. Rep. 374; State v. Reid, 1 Ala. 612, 35 Am. Dec. 44; State v. Wilforth, 74 Mo. 528, 41 Am. Rep. 330; State v. Mitchell, 3 Blackf, (Ind.) 229; Bish. St. Crimes, § 793. The early decision to the contrary, of Bliss v. Com., 2 Litt. (Ky.) 90, 13 Am. Dec. 251, has not been generally approved.

The defendant further contends that this statute, which mentions certain military bodies as exempt from its operation, is class legislation, which grants exclusive privileges to certain classes of citizens which are denied to the body of the people. It is not contended that the troops of the United States or the regularly organized militia of the commonwealth should be forbidden to drill and parade; but the argument is that the legislature has no power to single out other independent organizations, and give to them peculiar rights which it denies to others. But, in regulating drills and public parades, it is for the legislature to determine how far to go. No independent military company has a constitutional right to parade with arms in our cities and towns, and the granting of this privilege to certain. enumerated organizations does not carry with it the same privilege to all others. It is within the power of the legislature to determine, in reference to such independent organizations, which of them may, and which of them may not, associate together and organize for drill and parade with firearms. No decision has been cited to us which intimates the contrary. The granting to certain persons of special privileges of this kind, which do not interfere with the rights of others, is not open to objection on constitutional grounds.

It appeared in evidence that the defendant, with 10 or 12 other men, formed one company in the parade, and that all the men in this company carried ordinary breech-loading Springfield rifles, which had been altered and bored in the barrel near the breech, and the firing pins had also been filed down, so as to make them immovable; and in this condition they could not discharge a missile by means of gunpowder or any other explosive. The defendant contends that these weapons were not "firearms," within the meaning of the statute. The purpose for which these alterations were made is not disclosed. They would not be obvious to the ordinary observer, while. the rifles were carried in the parade. So far as appearance_went, it was a parade with firearms which were efficient for use. To the public eye, it was a parade in direct violation of the statute. The men who carried these weapons could not actually fire them, but it would be generally supposed that they could. With the exception. of the danger of being actually shot down, all the evils which the statute was intended to remedy still existed in the parade in which the defendant took part. To hold that such a weapon is not a "firearm," within the meaning of the statute, would be to give too narrow and strict a construction to its words. It was originally a firearm which was effective for use. The fact that it was disabled for use did not change its name. It was for the court to determine whether the statute included the weapon which was produced and exhibited at the trial, and his instruction to the jury that it was a "fire

arm," within the meaning of the statute, was right. Williams v. State, 61 Ga. 417, 34 Am. Rep. 102; Atwood v. State, 53 Ala. 508; Bish. St. Crimes, § 791.

Verdict of guilty to stand.

9. MCGARRAY v. MURPHY.

(Supreme Court of Ohio, 1909. 80 Ohio St. 413, 88 N. E. 881, 17 Ann. Cas. 444.)

DAVIS, J. The defendant in error made application to the court of common pleas of Cuyahoga county for a writ of habeas corpus representing that he was unlawfully restrained of his liberty by the sheriff of that county upon the pretext that the relator had used insulting language to one Capt. Lock of the Ohio National Guard. The return indorsed on the writ disclosed that the sheriff held the relator under the following authority: "Cleveland, Ohio, October 27, 1908. To the sheriff of Cuyahoga county. Sir, This is to notify you that William C. Murphy has been sentenced to confinement in the county jail of Cuyahoga county for fifteen days, commencing at noon, October 27th. Frank E. Lock, Captain Fifth Infantry, O. N. G." Upon the hearing in the common pleas court, it appeared from the relator's own testimony that he was under 21 years of age when he enlisted; that he had served one year and a half without having applied for discharge on account of minority; that he was arraigned before the summary court officer of the regiment and charges read to him and he pleaded guilty thereto; that he was then detained at the armory until Capt. Lock came and told him that he was sentenced to serve 15 days in the jail, and he was then taken to the jail, where he was held until the time of the hearing on the application for a writ of habeas corpus. It also appeared from the testimony of the relator and of Capt. Lock that the relator was a private soldier in Company F of the Fifth Regiment of Infantry of the Ohio National Guard, of which company Frank E. Lock was the captain, and that the relator as such private had received money. from the United States government and had signed government pay rolls. Upon the facts thus appearing, the court of common pleas found that Murphy was not unlawfully restrained of his liberty, and remanded him to the custody of the sheriff. Upon a petition in error filed the same day in the circuit court, that court reversed the judgment of the court of common pleas for error "in refusing to grant the prayer of the petition," and discharged the prisoner.

We think that it clearly appears from this record that Murphy is a soldier of "the organized militia" of the United States, in the National Guard of Ohio, as defined in the act of Congress approved January 21, 1903 (32 Stat. 775, c. 196 [U. S. Comp. St. Supp. 1907, p. 326]), entitled "An act to promote the efficiency of the militia, and for other purposes" as amended by the act of May 27, 1908 (35 Stat. 399, c. 204); and that as such soldier he was liable to trial by court-martial and punishment under the twentieth article of war of the United States, adopted in article 3, par. 14, of the Regulations of the Ohio National Guard, which reads as follows: "Any officer