embraces a very full and accurate review of the power of martial law:

"This is no new distinction in judicial practice any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented to preside on the bench in administering the laws between private parties under a government established and recognized by other governments, and in full possession de facto of the records and power of the kingdom, but without feeling satisfied on inquiring, as a judicial question, into its legal rights. Cromwell had gotten possession of the government,' and expressed a willingness to rule according to the laws of the land' by 'red gowns rather than red coats,' as he is reported to have quaintly remarked. And this Hale thought justified him in acting as a judge. (Hale's Hist. of the Com. Law, p. 14, Preface.) For a like reason, though the power of Cromwell was soon after overturned, and Charles the Second restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being. Grotius virtually holds the like doctrine. (B. I., ch. 4, sec. 20, and B. II., ch. 13, sec. 11.) Such was the case, likewise, over most of this country, after the Declaration of Independence, till the acknowledgment of it by England in 1783. (3 Story's Com. on Const., §§ 214, 215.) And such is believed to have been the course in France under all her dynasties and régimes, during the last half century.

"These conclusions are strengthened by the circumstance, that the Supreme Court of Rhode Island, organized since, under the second new constitution, has adopted this principle. In numerous instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws. (See cases in Smith v. Babcock, 2 Woodb. & Min.; 5 Howard, 139; Elmendorf v. Taylor, 10 Wheat. 159; Bank of U. States v. Daniel et al., 12 Peters, 32.) This, of course, relates to their validity when not overruling any defence set up under the authority of the United States. None such was set up in the trial of Dorr, and yet, after full hearing, the Supreme Court of Rhode Island decided that the old charter and its legislature were the political

powers which they were bound to respect, and the only ones legally in force at the time of this transaction; and accordingly convicted and punished the governor chosen under the new constitution for treason, as being technically committed, however pure may have been his political designs or private character. (Report of Dorr's Trial, 1844, pp. 130, 131.) The reasons for this uniform compliance by us with State decisions made before ours on their own laws and constitutions, and not appealed from, are given by Chief-Justice Marshall with much clearness. It is only necessary to refer to his language in Elmendorf v. Taylor, 10 Wheat. 159. Starting, then, as we are forced to here, with several political questions arising on this record, and those settled by political tribunals in the State and General Government, and whose decisions on them we possess no constitutional authority to revise, all which, apparently, is left for us to decide is the other point-whether the statute establishing martial law over the whole State, and under which the acts done by the defendants are sought to be justified, can be deemed constitutional.

"To decide a point like the last is clearly within judicial cognizance, it being a matter of private personal authority and right, set up by the defendants under constitutions and laws, and not of political power, to act in relation to the making of the former.

"Firstly, then, in order to judge properly whether this act of Assembly was constitutional, let us see what was the kind and character of the law the Assembly intended in this instance to establish, and under which the respondents profess to have acted.

"The Assembly says: The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is hereby declared to be in full force until otherwise ordered by the General Assembly, or suspended by proclamation of his excellency the Governor of the State.' Now, the words 'martial law,' as here used, cannot be construed in any other than their legal sense, long known and recognized in legal precedents as well as political history. (See it in 1 Hallam's Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts Martial, 33.) The legislature evidently meant to be understood in that sense by using words of such well-settled construction, without any limit or qualification, and covering the

whole State with its influence, under a supposed exingency and justification for such an unusual course. I do not understand this to be directly combated in the opinion just delivered by the ChiefJustice. That they could mean no other than the ancient martial law, often used before the Petition of Right, and sometimes since, is further manifest from the fact, that they not only declared 'martial' law to exist over the State, but put their militia into the field to help, by means of them and such a law, to suppress the action of those denominated 'insurgents,' and this without any subordination to the civil power, or any efforts in conjunction and in cooperation with it. The defendants do not aver the existence of any civil precept which they were aiding civil officers to execute, but set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another construction of this act, somewhat less offensive, by considering it a mere equivalent to the suspension of the habeas corpus, and another still to regard it as referring only to the military code used in the armies of the United States and England. But when the legislature enacted such a system as martial law,' what right have we to say that they intended to establish something else and something entirely different? A suspension, for instance, of the writ of habeas corpus a thing not only unnamed by them, but wholly unlike and far short in every view of what they both said and did? Because they not only said, eo nomine, that they established martial law,' but they put in operation its principles; principles not relating merely to imprisonment, like the suspension of the habeas corpus, but forms of arrest without warrant, breaking into houses where no offenders were found, and acting exclusively under military orders rather than civil precepts.

"Had the legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. A brief examination will show, also, that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them, in applying the provisions of those laws to a person situated like the plaintiff. For

nothing is better settled than that military law applies only to military persons; but 'martial law' is made here to apply to all. (Hough on Courts Martial, 384, note; 27 State Trials, 625, in Theobald Wolfe Tone's case.)

"The present laws for the government of the military in England, also, do not exist in the vague and general form of martial law; but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny, and to preserve good discipline. (1 Bl. Com. 412; 1 MacArthur on Courts Martial, p. 20.) So, in this country, legislation as to the military is usually confined to the General Government, where the great powers of war and peace reside. And hence, under those powers, Congress, by the act of 1806 (2 Stat. at Large, 359), has created the Articles of War, by which the armies of the United States shall be governed,' and the militia when in actual service, and only they. To show this is not the law by which other than those armies shall be governed, it has been found necessary, in order to include merely the drivers or artificers in the service,' and the militia after mustered into it, to have special statutory sections, (See articles 96 and 97.) Till mustered together, even the militia are not subject to martial law. (5 Wheat. 20; 3 Stor. Com. Const. $120.) And whenever an attempt is made to embrace others in its operation, not belonging to the military or militia, nor having ever agreed to the rules of the service, well may they say, we have not entered into such bonds-in hæc vincula, non veni. (2 Hen. Bl. 99; 1 Bl. Com. 408, 414; 1 D. & E. 493, 550, 784; 27 State Trials, 625.) Well may they exclaim, as in Magna Charta, that 'no freeman shall be taken or imprisoned but by the lawful judg ment of his equals, or by the law of the land.' There is no pretence that this plaintiff, the person attempted to be arrestod by the violence exercised here, was a soldier or militiaman then mustered into the service of the United States, or of Rhode Island, or subject by its laws to be so employed, or on that account sought to be seized. He could not, therefore, in this view of the case, be arrested under this limited and different kind of military law, nor houses be broken into for that purpose and by that authority.

"So it is a settled principle even in England, that, 'under the

British Constitution, the military law does in no respect either supersede or interfere with the civil law of the realm,' and that 'the former is in general subordinate to the latter' (Tytler on Military Law, 365); while martial law' overrides them all. The Articles of War, likewise, are not only authorized by permanent rather than temporary legislation, but they are prepared by or under it with punishments and rules before promulgated, and known and assented to by those few who are subject to them, as operating under established legal principles and the customary military law of modern times. (1 East, 306, 313; Pain v. Willard, 12 Wheat. 539, and also 19; 1 MacArthur, Courts Martial, 13 and 215.) They are also definite in the extent of authority under them as to subject-matter as well as persons, as they regulate and restrain within more safe limits the jurisdiction to be used, and recognize and respect the civil rights of those not subject to it, and even of those who are in all other matters than what are military and placed under military cognizance. (2 Stephen on Laws of Eng. 602; 9 Bac. Abr., Soldier, F; Tytler on Military Law, 119.) And as a further proof how rigidly the civil power requires the military to confine even the modified code martial to the military, and to what are strictly military matters, it cannot, without liability to a private suit in the judicial tribunals, be exercised on a soldier himself for a cause not military, or over which the officer had no right to order him; as, for example, to attend school instruction, or pay an assessment towards it out of his wages. (4 Taunt. 67; 4 Maule & Selw. 400; 2 Hen. Bl. 103, 537; 3 Cranch, 337; 7 Johns. 96.)

"The prosecution of Governor Wall in England, for causing, when he was in military command, a soldier to be seized and flogged so that he died, for an imputed offence not clearly military and by a pretended court martial without a full trial, and executing Wall for the offence after a lapse of twenty years, illustrate how jealously the exercise of any martial power is watched in England, though in the army itself and on its own members. (See Annual Register for 1802, p. 569; 28 State Trials, p. 52, Howell's ed.)

"How different in its essence and forms, as well as subjects, from the Articles of War was the "martial law" established here