The language of the excerpt is merely paraphrased by the Constitutional provision referred to. But the language of that provision was carefully changed so as to provide against suspension whether on the plea of necessity "or any other plea." It is worthy of note that in the argument of that case made by Mr. David Dudley Field, as condensed in the official reports, referring to the third and fifth amendments to the Federal Constitution, he says:› "These amendments were passed for a state of war as well as a state of peace. They were aimed at the military authority as well as the civil. The language of the Constitution should set this matter at rest forever. There is no room left for interpretation. If one should. set himself to the task of expressing most clearly the intention to limit and restrain military jurisdiction, he would find it hard to choose a better form of words. If he were to exclude military commissions by name, that would, perhaps, leave the door open to the same thing in another form." Evidently acting upon this suggestion or intimation the language of our Constitution, after containing all and much. more than was inserted in the Federal Constitution, did actually add thereto an express provision inhibiting trial or punishment "by any military court," thus actually excluding military commissions by name. It would seem that the framers of the Constitution by this language desired not only to make their meaning plain, but to justify it; and desired not only to insure against their purpose being thwarted upon any plea or pretext with which they were historically or personally familiar, but by careful foresight and anticipation to prevent the substitution of any other plea. not theretofore advanced, from again accomplishing the same purpose. In the case of Nance and Mays (reported as State ex rel. etc. Nance and Mays v. Brown, Warden of the State Penitentiary, 77 S. E. 243) and in the case of Jones and others (reported as Ex parte Jones, 77 S. E. 1029) the validity of the Military Commission and its sentences were presented to the Supreme Court of Appeals upon applications for writs of habeas corpus. In the Nance and Mays cases the petitioners had been tried and sentenced and were held as prisoners in the State Penitentiary under warrants signed by the Governor, which warrants set forth the charges, findings and sentences by the Military Commission, and the approval of such sentences by the Governor, the petitioners, as hereinbefore stated, having been sentenced for five and two years respectively. In the latter cases the petitioners had been arrested outside of the military zone, taken before a Justice of the Peace and by such Justice remanded to the custody of the Military Commission, but had not yet been tried by such Commission. In the Nance and Mays cases the Court held that the Governor of this State has power to declare a state of war to exist in any specific section therein, and to place such section under martial law. The second, third, fourth, fifth and sixth points of the syllabus are as follows: "2. The constitutional guaranties of subordination of the military to the civil power, trial of citizens for offenses cognizable by the civil courts only, are to be read and interpreted so as to harmonize with other provisions of the Constitution authorizing the maintenance of a military organization, and its use by the executive to repel invasion and suppress rebellion and insurrection, and the presumption against intent on the part of the people, in the formulation and adoption of the Constitution, to abolish a generally recognized incident of sovereignty, the power of self-preservation in the state by the use of its military power in cases of invasion, insurrection and riot." "3. It is within the exclusive province of the executive and legislative departments of the government to say whether a state of war exists, and neither their declaration thereof, nor executive acts under the same. are reviewable by the courts, while the military occupation continues." "4. The authorized application of martial law to territory in a state of war includes the power to appoint a military commission for the trial and punishment of offenses within such territory." "5. Martial law may be instituted, in case of invasion, insurrection, or riot, in a magisterial district of a county, and offenders therein punished by the military commission, notwithstanding the civil courts are open and sitting in other portions of the county." "6. Acts committed in a short interim between two military occupations of a territory for the suppression of insurrectionary and riotous uprisings, and such in their general nature as those characterizing the uprising, are punishable by the military commission within the territory and period of the military occupation." In the Jones case, the principles and conclusions of law in the Nance and Mays case were re-examined and in all respects approved and affirmed. In each case Judge Robinson dissented forcibly and at length, the other members, including Judge Brannon in the Nance case, and his successor, Judge Lynch, in the Jones case, concurring in the opinions rendered by Judge Poffenbarger. It is impossible in this paper to review at length the majority and dissenting opinions. Each shows a wealth of study and research through the whole realm of text-writers and decisions, modern and ancient, and leaves but little which could be added from the standpoint of decided cases, in support of the respective views and conclusions reached. It is worthy of careful note, however, that in the first mentioned case the Warden answered justifying under a warrant showing that the petitioners were committed under definite sentences and for specific terms, and the opinion, in point four of the syllabus, expressly holds that the authorized application of military law in a territory held to be in a state of war includes the power to appoint a military commission for the trial and punishment of offenses within such territory, although an addendum to the first opinion of the Court in this case, (understood to have been added after the opinion was rendered and made public, although before it was officially reported) specifically limits the inquiry of the Court to the question of the legality of the custody of the petitioners at the then present time and under the then existing conditions, martial law still being in effect at the date of such opinion, and states that the Court was not called upon to say whether at the end of the reign of military law the sentences would automatically terminate. The syllabus, however, remains unchanged. The only statute relied upon as sustaining the appointment of military commissions and the trial of citizens thereby seem to be section 92 of chapter 18 of the Code, which provides, in part : "In event of invasion, insurrection, rebellion or riot the commander-in-chief may, in his discretion declare a state of war in the towns, cities, districts or counties where such disturbances exist." which provision is part of the Military Code of this State and which Code does elsewhere provide in detail for the trial of soldiers or officers, but not of citizens; and also section 6 of chapter 14, which provides that the Governor "may also cause to be apprehended and imprisoned all any hostile action against the United States or this Upon these slender statutory enactments, coupled with the so-called "light of reason" and usages of international war, if applicable, rests the apparently Herculean task of explaining away or reconciling the constitutional provisions to which I have referred, adopted under the circumstances mentioned. It would seem to be manifest that the clause last quoted has no bearing whatever upon arrest or imprisonment of citizens for the commission of ordinary misdemeanors or felonies, and is no warrant for the creation of an extra judicial court for the trial of such citizens. The section first quoted, authorizing the Governor to declaré war, and the application to such war when so declared of principles of international or general law, including martial law and trials by military commissions, must, in the last analysis, be the only basis upon which can be vested any power in the State of West Virginia to try citizens before a military court or commission. It will be noted that section 92, above quoted does not in terms mention or refer to martial law, but confines itself to authorizing the Governor, in the event of invasion, insurrection, rebellion or riot, in his discretion, to declare that a state of war exists in the town, districts or counties where such disturbances exist. In different forms and in several places in the majority opinions in both of the cases referred to, the argument is made, in slightly variant forms, that the power is given the Governor by the Constitution to use the military forces "to execute the laws; suppress insurrection and repel invasion," and that the conference of such power, coupled with his power "to declare war," carries with it the right to use the military in any manner which he may deem necessary to restore order, and specifically carries with it the right, as being so necessary, to try and punish citizens by military commissions. And it is further argued that in the absence of an express denial in the Constitution of such power to try by military commissions, the presumption is against the intention to destroy or abolish it by implication. It is not perceived why or in what manner the right given the Executive to declare war necessarily carries with it as ar incident to suppress insurrection the right to use any one give. particular method to suppress insurrection even if elsewhere in the Constitution such right is either expressly denied, as I submit such right is expressly denied by our Constitution as to military commissions, or where the right to resort to such means is forbidden by reasonably plain implication. The recognized and usual incidents to war are not unchangeable, neither are they inherent and perpetual. They have changed almost beyond re cognition throughout the centuries by the slow growth of civilization, until even many international rules, formerly usual and ordinary, have been completely abolished, although some of such incidents, such, for instance, as the custom of poisoning wells and putting women and children to the sword, certainly had the merit of effectiveness. May not a state in adopting its organic law and providing for putting down insurrection among its own citizens, prescribe such conditions as it deems proper upon the method to be used, and which it thereby entrusts to its Executive in general terms, such Executive being himself a citizen? May it not in such organic law elect that insurrection shall neither in the suppression thereof nor in thereafter dealing with its inciters, if they be citizens and not in the military service, be entrusted to a military commission, whether upon the plea of necessity or any other plea. And, giving the language used its fair intendment, and neither straining to create nor to deny such power, has not this State in terms so inhibited both its executive and its legislative? Can any supposed presumption against the intention to abolish such a method of dealing with insurrectionists, conceding for argument that it theretofore existed and that its value was then estimated highly, prevail over such express and unequivocal language as was used therein and thereafter inhibited? May not the makers of our Constitution well have thought, in view of the past history of their State and of their country, that the price of suppressing an insurrection was too dear if it meant the substitution of martial law, the will of the incumbent of the Executive's chair, at any given time, without restriction, for all guaranties and all sureties? Especially if, as is contended, the necessity and propriety for declaring such martial law, and the length of its duration were also entrusted to the same Executive, without power of review by any department of the Government, or by all departments? It must be constantly borne in mind that this, like all questions under a written constitutional government, is one of power and not a question of its benevolent or tyrannical exercise. If the decisions of our Court in the cases cited are capable of being restricted so as to sustain the right of the Executive through the military to arrest and detain persons inciting or contributing to a state of insurrection, riot or war, pending the suppression of such riot, insurrection or war, they will, to such extent, probably meet with the unanimous approbation of the profession. So restricted, the principles announced as being within the power of the military, amount to no more than the right to meet lawless force with lawful force to whatever extent is necessary to suppress lawless. So restricted, such power has always been asserted and upheld equally and to exactly the same extent in sovereign states, municipal corpora |