trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature. We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress, to determine in what States or districts. such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety. *

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We have confined ourselves to the question of power. It was for Congress to determine the question of expediency. And Congress did determine it. That body did not see fit to authorize trials by military commission in Indiana, but by the strongest implication prohibited them. *

*

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under "military law," and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as "military government," superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated "martial law" proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

We think that the power of Congress, in such times and in such localities, to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.

We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money. And we are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the gov

ernment, and to augment the public dangers in times of invasion and rebellion.

Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice MILLER, concur with me in these views.

2. CRANDALL v. NEVADA.

(Supreme Court of the United States, 1867. 6 Wall. 35, 18 L. Ed. 745.)

Error to the Supreme Court of Nevada.

In 1865, the legislature of Nevada enacted that "there shall be levied and collected a capitation tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire," and that the proprietors, owners, and corporations so engaged should pay the said tax of one dollar for each and every person so conveyed or transported from the State. For the purpose of collecting the tax, another section required from persons engaged in such business, or their agents, a report every month, under oath, of the number of passengers so transported, and the payment of the tax to the sheriff or other proper officer.

With the statute in existence, Crandall, who was the agent of a stage company engaged in carrying passengers through the State of Nevada, was arrested for refusing to report the number of passengers that had been carried by the coaches of his company, and for refusing to pay the tax of one dollar imposed on each passenger by the law of that State. He pleaded that the law of the State under which he was prosecuted was void, because it was in conflict with the Constitution of the United States; and his plea being overruled, the case came into the Supreme Court of the State. That court-considering that the tax laid was not an impost on "exports," nor.an interference with the power of Congress "to regulate commerce among the several States"-decided against the right thus set up under the Federal Constitution.

Its judgment was now here for review.

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*

*

Mr. Justice MILLER delivered the opinion of the court. The people of these United States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a capital established by law, where its principal operations are conducted. Here sits its legislature, composed of senators and representatives, from the States and from the people of the States. Here resides the President, directing through thousands of agents, the execution of the laws over all this vast country. Here is the seat of the supreme judicial power of the nation, to which all its citizens have a right to resort to claim justice at its hands. Here are the great executive departments, administering the offices of the mails, of the public lands, of the collection. and distribution of the public revenues, and of our foreign relations. These are all established and conducted under the admitted powers of the Federal government. That government has a right to call to this point any or all of its citizens to aid in its service, as members

of, the Congress, of the courts, of the executive departments, and to fill all its other offices; and this right cannot be made to depend upon the pleasure of a State over whose territory they must pass to reach the point where these services must be rendered. The government, also, has its offices of secondary importance in all other parts of the country. On the sea-coasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its sub-treasuries. In all these it demands the services of its citizens, and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a State to obstruct this right that would not enable it to defeat the purposes for which the government was established.

The Federal power has a right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any State of the Union.

If this right is dependent in any sense, however limited, upon the pleasure of a State, the government itself may be overthrown by an obstruction to its exercise. Much the largest part of the transportation of troops during the late rebellion was by railroads, and largely through States whose people were hostile to the Union. If the tax levied by Nevada on railroad passengers had been the law of Tennessee, enlarged to meet the wishes of her people, the treasury of the United States could not have paid the tax necessary to enable its armies to pass through her territory.

(Supreme Court of the United States, 1878. 99 U. S. 188, 25 L. Ed. 473.)

Error to the Supreme Court of the State of Alabama.

In accordance with a special statute of Alabama, authorizing the appointment of a general administrator and general guardian for Mobile County, and for other purposes, approved Dec. 14, 1859, Wesley W. McGuire having been duly appointed to that office for the term of four years, he, March 7, 1864, made and delivered to the probate judge of the county his bond, in the penal sum of $150,000, conditioned according to law, with Ketchum and others as his sureties thereon. Letters of administration were granted to him Sept. 21, 1865, upon the estate of William Buckley, deceased, by the Probate Court of said county, by virtue whereof he administered upon the estate. In May, 1869, in answer to a citation served upon him at the instance of the heirs of Buckley, he made a final settlement of his administration of the estate, and decrees were entered against him for the sums due to each of them respectively. Executions were issued on the decrees, and returned "no property found." George. W. Buckley, one of said heirs, thereupon brought suit in the Circuit Court of Mobile County for the sum due to him by said decree, alleging that for the devastavit of the assets of the deceased, committed by the said McGuire, he and the other defendants, his sureties, were liable on the bond.

McGuire died after the commencement of this suit. His sureties set up that at the time of his appointment Alabama, as one of the so-called Confederate States, was at open war with the United States, but that before June 20, 1865, the Confederate government was subdued, the insurrectionary government of the State overthrown, and her entire people under martial law; that the President, in his proclamation of June 21, 1865 (13 Stat. 767), declared that the rebellion had "deprived the people of the State of Alabama of all civil government;" that he appointed Lewis E. Parsons governor, and authorized him to organize civil government in the State; that Parsons, in pursuance of the proclamation, and by virtue of the authority thereby conferred, called a convention of the people to be elected as therein prescribed to meet at Montgomery, to inaugurate civil government in the State; that he retained in office by name all justices of the peace and certain other officers, but declared that sheriffs and judges of the Probate Court were only retained until others should be appointed upon application of the people of the respective counties, but he authorized them to continue to discharge the duties of their respective offices upon taking the oath of fidelity to the United States; that George W. Bond had been elected probate judge of that county in May, 1861, for the term of six years, and was in office when the insurrectionary State government was overthrown; that said Parsons appointed said Bond to the office of probate judge; that the office of said McGuire as general administrator and general guardian had, by reason of the premises, ceased before the letters of administration were granted to him on the estate of said Buckley; that he was not named in the proclamation as one of the officers retained; that the grant of the letters to him was therefore void; and that his sureties were not liable for his administration of said estate.

The Circuit Court held, on demurrer, the defence to be insufficient to bar the suit. Judgment was rendered for the plaintiff, and it having been affirmed by the Supreme Court, the defendants sued out this writ of error.

Mr. Chief Justice WAITE delivered the opinion of the court.

We are not willing to hear an argument on the only possible Federal question presented by this case. It is now settled law in this court that during the late civil war "the same general form of government, the same general law for the administration of justice and the protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority, or the just rights of the citizens, under the Constitution, they are in general to be treated as valid and binding." Williams v. Bruffy, 96 Ü. S. 176, 24 L. Ed. 716; Horn v. Lockhart et al., 17 Wall. 570, 21 L. Ed. 657; Sprott v. United States, 20 Wall. 459, 22 L. Ed. 371; Texas v. White, 7 Wall. 700, 19 L. Ed. 227. The appointment by the President of a military governor for the State at the close of hostilities did not of itself change the general laws then in force for the settlement of the estates of deceased persons, and did not remove from office those

who were at the time charged by law with public duties in that behalf. It is not alleged that the governor after his appointment undertook by any positive act to remove McGuire from the position he occupied as general administrator, or that McGuire himself at any time ceased to perform the duties of his office by reason of what was done by the President or others towards the restoration of the State to its political rights under the Constitution of the United States. From all that appears in the record, he continued to act during the whole of his term as general administrator of the county, notwithstanding the changes that were going on in the other departments of the State government. Under these circumstances, it is so clear that the judgment of the court below was right, that we grant the motion to affirm.

Judgment affirmed.

4. STATE v. BROWN.

(Supreme Court of Appeals of West Virginia, 1912. 71 W. Va. 519, 77 S. E. 243, 45 L. R. A. [N. S.] 996, Ann. Cas. 1914C, 1.)

Habeas corpus by the State on relation of L. A. Mays, and on relation of F. S. Nance, to secure relator's release from custody of M. L. Brown, Warden of the State Penitentiary. Writs denied.

POFFENBARGER, J. L. A. Mays and S. F. Nance, in the custody. of M. L. Brown, warden of the penitentiary of this state, under sentences of a military commission, appointed by the Governor, to sit in a territory corresponding in area and boundaries with the magisterial district of Cabin creek, in the county of Kanawha, in which the said Governor had declared a state of war to exist, by proclamation duly issued and published, seek discharges and liberation upon writs of habeas corpus duly issued by this court. Upon these writs, lack of authority in the Governor to institute, in cases of insurrection, invasion, and riot, martial law is denied in argument. A further contention is that his power to do so extends only to the inauguration or establishment of a limited or qualified form of such law, subordinate to the civil jurisdiction and power to a certain extent; and certain provisions of the state Constitution are relied upon as working this restraint upon the executive power, among them the provision of section 4 of article 3, saying, "The privilege of the writ of habeas corpus shall not be suspended," and the provision of section 12 of the same article saying, "The military shall be subordinate to the civil power; and no citizen, unless engaged in the military service of the state, shall be tried or punished by any military court, for any offense that is cognizable by the civil courts of the state." A minor question is whether offenses committed immediately before the proclamation of martial law, but connected with the insurrection. and operative therein, may be punished by a military commission, acting within the period of martial occupation and rule.

All agree as to the character and scope of martial law, unrestrained by constitutional or other limitations. The will of the military chief, in this instance the Governor of the state, acting as command