Additional opinion by
Pofeenbaegee, Peesident :The attempt, in the dissenting opinion prepared since the filing *552■of the Court opinion, to apply to these cases principles deemed clearly inapplicable by all concurring in the decision, renders it proper in our judgment to file an additional opinion, pointing out more specifically the grounds of distinction, and also to direct attention to th'e non-judicial and speculative character of much of the matter quoted in the dissenting opinion.
The Milligan Case, 4 Wall. 1, the opinion in which constitutes the real basis of the elaborate argument against the views of the majority of the Court, arose in the state of Indiana, in which there was no actual war nor any pretense thereof. That state was in a military, but nevertheless peaceable, district. Milligan was a citizen of the state, arrested therein upon a charge of conspiracy against the government of the United States, tried on that charge by a Military Commission, convicted and sentenced to death. The specifications under the charge were substantially as follows: That Milligan with others, in a time of actual war, set on foot a secret military organization for the purpose of overthrowing the government and conspired to seize the United States and state ■arsenals, and to release the prisoners of war confined in the military prison under charge of the military authorities; to arm these prisoners; to join with them such other forces as they could raise; and to march into Kentucky and Missouri and to co-operate with the rebel forces there; that the conspirators communicated with the enemy to induce them to invade the states of Kentucky, Indiana and Illinois, intending themselves to join and co-operate with the enemy in the event of such an invasion, and that they armed themselves for that purpose.
Of the character of the case, the court said: “It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on States in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was *553furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they, were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to pr.otect witnesses before a civil as a military' tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court were better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.” .
Of the class of cases to which this one belongs, and that one did not, the court said: “It follows from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of actual military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should 'obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a *554necessity, in one state, when, in another, it would be ‘’mere lawless violence.’ ”
It was against the attempted misapplication of martial law to the pacific-state of Indiana and her citizens, on the ground of the-existence of a state of actual war in other portions of the Union,, but not extending into Indiana, that the thunderous eloquence- and invincible logic of Garfield, Black, ¡McDonald and Mr. Justice Davis were directed. All of them admitted its proper application to the theater of actual war in the Southern states.
During the greater part of the period of the Civil War, the situation in most of the state of West Virginia was similar to that of Indiana. It was pacific territory, though within the lines of a military district. Here, as in Indiana and elsewhere, there were abuses of military authority on a mere pretext of necessity, since there was no actual war in it and the functions of the courts were not obstructed. Acts and practices sanctioned by the principles of martial law, when applicable, were indulged in by the military officers and soldiers. This history was fresh in the recollections of the framers of the Constitution of 1872. The friends and relatives of delegates to that convention and perhaps some of the delegates themselves had been victims of such illegal acts. To give effect to the provisions of the national and state Constitutions in all pacific territory in a period of war as in time of peace closes the avenue of such abuses of power as that condemned in the Mil-ligan Case. That this was the evil the provision quoted in the dissenting opinion from Art. I. of the Constitution was intended to remedy is made manifest by the conditions and experiences in the light of which it was framed and adopted. Constitutional and statutory provisions are always to be interpreted in the light of the evils they were obviously designed to remedy, and do not, as a rule, extend beyond such purpose. No other rule of interpretation is more firmly established or more generally recognized. It is a rule of common sense.
Nor do the terms of the section above referred to justify or sustain the broad view and claim for which it is cited. It makes no reference to the theater of actual war. It does not say the constitutional provisions shall be operative in invaded, insurrec-tionary or rebellious portions of the state. It specifies times not places, saying the provisions shall be operative, (where they can *555operate), “alike in a period”, not a place, “of war as in time of peace.” In the preceding war, the military authorities endeavored to make the existence of war in which the United States was engaged anywhere, though in a foreign country, justification for martial rule, in any or every part of the country, no matter how thoroughly tranquil its condition or free and effective the administration of the laws. Surely the framers of this provision, having so recently witnessed the impossibility of the operation of constitutions, statutes and other civil laws in areas of actual war, did not contemplate their operation in such places. We are not to presume they intended what they knew could not be. On the contrary, we naturally presume against intent to accomplish the impossible, in the absence of expression thereof. If the section said the constitutional provisions should be operative in places instead of periods of war, there would have been an expression of such intent, but the statesmen of 1872 knew what was needed as a relief from doubt as to the guaranties of life, liberty and property in pacific territory in periods of war and carefully selected apt words to’ accomplish that purpose without destroying a sovereign power necessary to the preservation of those guaranties themselves.
Section 3 of Art. I. is a declaration of a general principle, carried into effect by the more specific provisions referred to in the original opinion filed herein, declaring subordination of the military to the civil power and inhibiting trial of citizens by military courts for offenses cognizable by the civil courts. Their purpose is to prevent such trials in tranquil territory in which the courts have free and unobstructed operation. In the areas of actual war, however occasioned, they do not have free course. Offenses committed there are not cognizable by the civil courts, because not within their reach, and, if they are committed in aid or furtherance of the invasion, insurrection, rebellion or riot, they are punishable by a military commission appointed for the trial thereof.
The dissenting opinion confuses the occasion and conditions of a state of war with the suspension of the writ of habeas corpus. During the troublous times of the Civil War, there were attempted and actual suspensions of the writ in pacific portions of the country. That alone did not create war in such territory and *556substitute military for civil rule. It was an express suspension of the writ in tranquil territory and no more. As the power was abused and its exercise wrought injustice, it has been forbidden by the Constitution. But there is necessarily an informal and implied suspension in every instance of actual war throughout the field of military operation, as the opinion in the Milligan Case and practically all other authorities admit.
While the supreme court of North Carolina in Ex part Moore and others, 64 N. C. 802, the opinion which is quoted at great length in the dissenting opinion filed here, claimed the writ of habeas corpus ran in the theater of actual war, it confessed its inability to enforce it, expressly refusing rules and attachments against the military officer, in whose custody the petitioners were, and the governor by whose direction and orders he held them and refused to obey the writ. The Chief Justice stated his final conclusion in the following terms: “The second branch of the motion, That the power of the county be called out if necessary, to aid in taking the petitioner by force out of the hands of Kirk, is as difficult of solution as the first. The power of the county, or ‘posse comitatus’, means the men of the county in which the writ is to be executed: in this instance Caswell, and that county is declared to be in a state of insurrection. Shall Insurgents be called out by the person who is to execute the writ, to join in conflict with'the military forces of the State ? It is sa'id that a sufficient force will volunteer from other counties'. They may belong to the association, or be persons who sympathize with it. But the ’posse comitatus’ must come from the county where the writ is to be executed; it would be illegal to take men from other counties. This is settled law. Shall illegal means be resorted to in order to execute a writ? Again: every able-bodied man in the State belongs to the militia, and the Governor is by the Constitution ‘commander-in-chief of the militia of the State’, Art. III., sec 8. So the power of the county is composed of men who are under the command of the Governor; shall these men be required to violate, with force, the orders of their Commander-in-chief, and do battle with his other forces that are already in the field ? In short, the whole physical power of the State is by the Constitution under the control of the Governor. The Judiciary has only a moral power. By the theory of the Constitution there can be no conflict between these two branches of the government. The writ *557will be directed to the Marshal of the Supreme Court, with instructions, to exhibit it and a copy of this opinion to his Excellency, the Governor. If he orders the petitioner to be delivered to the Marshal, well; if not, following the example of Chief Justice Taney, in Merrimwris Case, (Annual Cyclopedia, for the year 1881, page 555,) I have discharged my duty; the power of the Judiciary is exhausted, and the responsibility must rest on the Executive/’’
The writ having been delivered to the governor, he' replied to it by a letter to the Chief Justice, in which, after reciting his proclamation of war in two counties of the state and the terrible conditions necessitating such action, he said: "Under these circumstances I would have been recreant to duty, and faithless to my oath, if I had not exercised the power in the several counties, which your Honor has been pleased to say I have exercised constitutionally and lawfully; especially as, since October 1868, I have repeatedly, by proclamations and by letters, invoked public opinion to repress these evils, and warned criminals and offenders against the laws, of the fate that must in the end overtake them, if, under the auspices of the Elan referred to, they should persist in their course. I beg to assure your Honor that no one subscribes more thoroughly than I do to the great principles of habeas corpus, and trial by jury. Except in extreme cases, in which beyond all question The safety of the State is the supreme law/ these privileges of habeas corpus and trial'by jury should be maintained. I have already declared that, in my judgment, your Honor and all the other civil and judicial authorities are unable, at this time, to deal with the insurgents. The civil and the military are alike Constitutional powers — the civil to protect life and property when it can, and the military only when the former has failed. As the Chief Executive I seek to restore, not to subvert, the judicial power. Your Honor has done your duty, and in perfect harmony with you I seek to do mine. It is not I, or the military power, that has supplanted the civil authority; that has been done bjr the insurrection in the counties referred to. I do not see how I can restore the civil authority until I ‘suppress the insurrection/ which your Honor declares I have the power to do ; and I do not see how I can surrender the insurgents to the civil authority until that authority is restored. It would be a mockery in me to declare that the civil authority was unable to protect the *558citizens against the insurgents, and then turn the insurgents over to the civil authority. My oath to suppport the Constitution, makes it imperative on me to ‘suppress the insurrection’ and restore the civil authority in the counties referred to, and this I must do. In doing this I renew to your Honor expressions of my profound respect for the civil authority, and my earnest wish that this authority may soon be restored to every County and neighborhood in the State.”
This was in July, 1870. On August 15, 1870, the governor again wrote the Chief Justice, apprising him of the .pacification of the two counties in question and his readiness then to make return to the writ. In this letter he said : “I assured your Honor that as soon as the safety of the State should justify it, I would cheerfully restore the civil power, and cause the said parties to be brought before you, together with the cause of their capture and detention. That time has arrived, and I have ordered Col. Geo. W. Kirk to obey the writs of habeas corpus issued by your Honor.”
Thus the case relied upon, as denying power in a governor to declare a state of war in a county, declares exactly the opposite. Though denying power in the executive to do more than make arrests for civil offenses, under an erroneous interpretation of constitutional provisions, the decision also admits lack of power to enforce them as thus construed, and so runs to a palpable absurdity. The decision was later interpreted by Justice Dick of the same court, the Chief Justice and Justice Settle being present, upon applications for bench warrants against the governor and his subordinate officers, as harmonizing with the views of this Court on the main proposition involved. Justice Dick said: “The Constitution and laws of the State authorize and empower the Governor to organize and use the military forces of the State to suppress insurrection, &c., and the Judiciary have no jurisdiction to arrest the Governor, while acting in that capacity, for any alleged transcending of his authority in the discharge of Execiu-live duties. ‘The Legislative, Executive, and Supreme Judicial power of the government ought to be forever separate and distinct from each other.’ Const. Art. I., sec. 8. Each of these coordinate departments has its appropriate functions, and one cannot control the action of the other, in the sphere of its constitutional power and duty. The government was formed for the ben*559efit of all the citizens of the State, and it -would he of little force and efficiency, if the Governor, (in whom is vested the supreme Executive power of the State,) could be arrested, and thus virtually deposed, by a warrant from the Judiciary, issued upon the application of an individual citizen, for alleged excess of authority in the performance of what the Governor may consider his executive functions. * * * The Governor is not above the law. He is as much subject to its obligations and penalties, as the humblest citizen. But the Constitution provides a Court of Impeachment, as the proper forum for the trial of the Governor, for any abuse of executive power. .After he is deposed, or his-term of office expires, he is liable to indictment and punishment for such violations of the laws of the State, during his term of office. * * * The only difference we have as to the other parties included in the application of the affiant, is, whether we have authority to issue a warrant, which can be executed in the insurrection-ary Counties of Alamance and Caswell, against the military officers of the Governor. The laws of the State authorize the Governor, under certain circumstances, to declare a County or Counties in a state of insurrection, and call out the militia to arrest insurgents, &e.: See the Opinion of Chief Justice Pearson in the case of A. G. Moore and others. This is a discretionary power, vested in the Governor by th'e Constitution and laws of the State, and cannot be controlled by the Judiciary, but the Governor alone is responsible to the people for its proper exercise. The laws upon this subject would be virtually repealed, and the powers of the governor rendered wholly ineffectual, if it could be stopped or impeded by the Judiciary upon the application of insurgents, the friends and sympathizers of insurgents, or other persons. We have nothing to say as to the policy of the law; as Judges, we can only consider its legal effect. * * * We are of the opinion that we have no authority to issue a bench warrant to the insur-rectionary counties of Alamance and Caswell, against the military officers and agents of the Governor, while they are acting under his orders in suppressing the insurrection. Outside of the insurrectionary districts they may be arrested, as the powers of the Court are in full force there. The motion for a bench warrant against G. W. Kirie, G. W. Burgen and Alexander Ruffin is allowed. The warrants will be directed to the Sheriff of Wake *560County, to be executed in any part of the State except the counties of Alamance and Caswell.”
We hold the governor’s determination of the justification or necessity for proclamation of a state war is not reviewable. So the decision, relied upon in the dissent, holds. We hold the writs of the courts do not run in the war area, or district under martial law. So that decision holds. We hold the courts cannot arrest the arm of the executive engaged in the suppression of an insurrection. So that case holds. That court endeavored to enforce the view that the non-suspension clause, relating to the writ-of habeas corpus, limits the power of the executive in the insurgent district to the making of arrests and immediate delivery of the prisoners to the civil authorities, but admitted lack of power to enforce that view, and said, as we say, the governor was beyond-the power of the judiciary and responsible only to the people, for his actions in the insurrectionary district, declared to be in a state of war.
Recurring to the argument founded upon recent observation and experience in the Civil War, at the date of the adoption of the Constitution, we find further and decisive refutation thereof in a constitutional provision and a statute not referred to in the original opinion. Section 1 of chapter 14 of the Code of 1868, in force at the date of the adoption of the Constitution of 1872, authorized the use of the militia to repel invasion and supjiress insurrection and also to suppress any combination in any part of the state, too powerful to be suppressed by ordinary judicial proceedings, endangering, the peace and safety of the people or obstructing the execution of the laws. Section 6 of the same chapter authorized him to cause to be apprehended and imprisoned, or. compelled to leave the state all who, in time of war, insurrection or public danger, should wilfully give aid, support, or information to the enemy or insurgents, or who, he shall have just cause to believe, are conspiring or combining together to aid or support any hostile action against the United States or this state. Sections 7, 8 and 9 of that chapter show he was not limited, in the means by which to exercise this power, to the civil or judicial process of the state. He was to act upon his own judgment and select his own method of procedure. Section 21 of Article VIII. of the Constitution contained this provision: ' “Such parts of the *561common law, and of the laws of this state as are in force when this article goes into operation, and are not repugnant thereto, shall be and continue the law of the state until altered or repealed by the legislature.” It never occurred to the legislature of 1872, composed largely of the men who drafted the Constitution of that year and aided in its adoption, nor to any other subsequent one, that the provisions of chapter 14 of the Code of 1868 were repugnant to Article VIII., for they were not repealed then, while the constitutional purposes were fresh in the minds of our statesmen, nor have the large powers there given to the governor ever been taken away. On the contrary, they were re-enacted in 1882 and: still remain in the Code, amplified by sections 54 and 92 of chapter 18 of'the Code. None of the laws in force then were deemed to be repugnant to any of the provisions of the Constitution, relied upon by the petitioners or in the dissenting opinion, for none-of them are in Article VIII:, and that article continued in force-all laws not repugnant to it, among them all the laws authorizing the governor to use the military forces for the purposes and in the manner in which they were used or could have been used previously under the war constitution of 1863.
An article prepared by Judge-Advoeate-General of the U. S. Army, Norman G-. Leiber, relied upon in the dissenting opinion’,, like the decision in the Milligan Case, deals exclusively with rights and powers in pacific territory, not in the theater of actual1 war. He begins by naming the four kinds of military jurisdiction, (1) regulation of the army; (2) military rule in an enemy’s territory, during occupation thereof; (3) military power-in time of war, insurrection or rebellion over persons in the military service, as to obligations arising out of such emergency, and not falling within the domain of military law, nor otherwise regulated by law, an application of the doctrine of necessity, founded on the right of national self-preservation; and (4) martial law at home, or as a domestic fact; by which is meant military power exercised in time of war, insurrection or rebellion in -parts of the country retaining allegiance. He then says: “It is to this last-mentioned kind of military jurisdiction that these remarks apply.” Though he thus expressly says he is not discussing the-exercise or limits of military power in the theater of actual war, insurrection or rebellion, but only the limits of such power in parts of the country retaining allegiance, necessar^y tranquil *562country, the dissenting opinion takes no notice of the subject of discussion and treats his observations as applicable to powers and transactions in insurrectionary territory, officially declared to be in a state of war. This is a palpable oversight or misapprehension of the true meaning of his observations and citations of authority. His quotation from the opinion in Luther v. Borden, 7 How. (U. S.) 1, shows this. • We read: "In relation to the act of the Legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a state. Unquestionably a military government, established as the permanent government of a state, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And, unquestionably a state may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the Tights and usages of war to maintain itself, and to overcome the unlawful opposition.”
Having quoted this, Gen. Lieber said: “In regard to this case it is deserving.of particular notice that it is an error to rely on it in proof of the theory that Congress has the power to declare martial law, in the sense in which we have been using that term. It is true that this was a case of so-called ‘martial law’ declared by the legislature, but what did the legislature mean by it P The term has no fixed meaning even at the present day; different writers still give it different meanings. When the legislature of Rhode Island made use of it in 1842 it probably was intended to have no more definite meaning than that the militia of the state was to *563use its military power to suppress the enemies of the state. It was an authorization to do what was done when the military officer broke into the house of one of the enemies of the state in order to arrest him. He was a public enemy against whom the military power had been called out. It is evident that this is not the kind of martial law which we have been discussing.”
In the face of the declaration by the Supreme Court of the United States, above quoted, it is argued that a state cannot declare a state of war and adopt the usages of war in the suppression of an insurrection, because the national government may be summoned to the aid of the state in its efforts to uphold and enforce its authority. As the court in Luther v. Borden plainly says, that national obligation and right is in aid of the state government, not in exclusion thereof. It was never intended that the federal government should assume the duties of state government, nor reduce the state to a condition of dependence upon the discretionary exercise of federal power respecting the maintenance of its authority within its own territory, not in conflict with the limitations of the national Constitution upon the powers of the states. The federal government assumed no obligation to do for the states what they can do for themeslves, nor laid any restraint upon their sovereign powers except in certain instances or for the accomplishment of enumerated federal purposes. Observe that Judge Cooley said, in the quotation found in the dissenting opinion, this article of the national Constitution is an “acquisition of strength and additional force to the aid of any state government.” Why should we be asked to read this as if it said “to the exclusion of the powers of any state government?”
Professor Ballentine, like Gen. Lieber, was discussing the exercise of military power in pacific territory, as a careful reading of the quotation from him shows. He is merely stating the doctrine of the Milligan'Case. Frank v. Smith, cited by him, did not arise under a proclamation of war. Johnson v. Jones and Ela v. Smith, are cited by him against authority of the governor, without legislative sanction, to declare war. Here we have both legislative and express constitutional authority in the governor to do so.
The quotations from Gen. Garfield, Gen. Norman, Prof..Bal-lentine, David Dudley Field and others, are not judicial expressions, even if they related to the question here involved, but, worse yet, they have no application to the question.
*564Another distinction not marked nor indicated in the dissenting opinion runs through much of the mass of quoted matter therein from public writers. That is the distinction between the power to do an act and liability for a wrong done in the exercise of that power. We have in this case nothing to do now with claims for damages for wrongs done by the executive officers in the exercise of their powers. The opinions in the North Carolina case, relied upon in the dissenting opinion, not quoted therein, but quoted here, mark this distinction plainly. While the executive and his subordinate officers are engaged in the suppression of an insurrection, there is no power in the courts to restrain them, though there may be, after the war is over, a right of action for damages for some wrongful act, done in the exercise of the power. This principle applies in other relations. If a man has land leased for certain purposes, and, in carrying on those purposes, he does some wrongful act, he is liable for the wrong done, but that liability does not defeat his right to the use of the land. Under our tax laws, land may be sold for the nonpayment of taxes, and there may be a right, because of some error or violation of law, to avoid the sale, but, notwithstanding, the law gives no remedy to stop the sale by injunction or otherwise. Quotations of law applicable to the question of liability for wrongs done in the exercise of executive power is wholly inapplicable to the question of the power of the court to stop, restrain or interfere with the exercise thereof, and they are therefore misleading and confusing. There are many instances in which private right or interest must be subordinate to, and compelled to await the accomplishment of, great public purposes. “Members of the legislature shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during the session, and for ten daj^s before and after the same; and for words spoken in debate, or any report, motion or proposition made in either house, a member shall not be questioned in any other place.” Cons. x\rt. YL, sec. 17. “The following persons shall also be privileged from arrest under civil process, except for an escape, to-wit: A judge, grand juror, or witness, required by lawful authority to attend at any court or place, during such attendance, and while going to and from such court or place; officers and men, while going to, attending at, and returning from any muster or court-martial which they are lawfully required to attend; *565persons attending funerals and ministers of the gospel while engaged in performing religious service in a place where a congregation is assembled and while going to and returning from such place. Such privilege shall only be on the days of such attendance, and an additional day for every twenty miles traveled in going and returning.” Code (1906) ch. 41, sec. 14. “No civil process or order shall be executed on Sunday, except in cases of persons escaping from custody, or where it may be especially provided by law.” Code (1906) ch. 41, sec. 15.
These provisions rest upon the obvious physical necessity, in government as elsewhere, even at post offices, railway stations, hotels, on highways and in mountain passes, of the observance of order as to time, place and methods of procedure.
Aside from the argument of presumption against the destruction or abolition of a high sovereign power by mere implication, the terms of section 12 of Article VII. of the Constitution may be invoked. This section confers power upon the governor in express terms to call oitt “the military forces of the state * * * to execute the laws, suppress insurrection and repel invasion.” Here is a constitutional grant of express power to “suppress insurrection”, without limitation or prescription of the. mode of exercise thereof. That grant, according to settled rules of interpretation, recognized everywhere, carries with it, by implication, all means reasonably necessary to effective exercises of the power. Under other rules, it carries such power and means as are included in the term “suppress insurrection”, as defined in law. They are defined in law by the authorities relied upon in the dissenting opinion and all others as including the right to apply martial law in an insurrectionary area. It has been so understood in all countries and in all ages. So all departments of the federal government understood and applied it in the War of 1812 and the late Civil War. “The construction, given to a statute by those charged with the duty of executing it, ought not to be overruled without cogent reasons. The popular or received import of words furnishes the general rule for the interpretation of public laws as well as of private and social transactions. * * * When words in a statute, have acquired, through judicial interpretation, a well understood legislative meaning, it is to be presumed they were used in that sense in a subsequent statute on the same subject, unless the contrary appears.” Daniel v. *566Simms, 49 W. Va. 554, pts. 6, 7 and 8, syllabus. These rules are just as applicable in the interpretation of constitutional provisions as in that of statutes. This express grant of power to the executive necessarily destroys all such supposed implications as are relied upon in the dissenting opinion.
That, to justify the application of martial rule to a territory or section of a state, the courts thereof must be wholly closed and inoperative, is not sustained by the authorities cited in the dissenting opinion. Some passages in the opinion in the Milligan Case seem to say so, but others say the contrary. The court based its position on its judicial knowledge that “in Indiana the federal authority was always unopposed and its courts always open” and “their process unobstructed.” The opinion says “after this military tribunal was ended the circuit court met, peacefully transacted its business and adjourned, * * * * * required no military aid to execute its judgments, * * * * and was never interrupted.” The opinion also says that, on the theater of active military operations, where war really prevails, “there is necessity to furnish a substitute for the civil authority, * * * and it is allowed to govern by martial law until the laws can have their free course”; and that “Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdictionHaving spoken of open or unobstructed courts having free course, as precluding martial law, and overthrown, obstructed or interrupted courts, as justifying it, shall we not take the opinion as having stated just what the court meant? How else may we logically and sensibly interpret its language? Can we-say it meant only one of several different things mentioned as producing the same effect? Ho doubt they ■ meant just what Mr. J. S. Black, the ablest of Milligan’s counsel, and the greatest lawyer in the case, said of the general plan of our constitutional government in his argument: “Military force repels invasion and suppresses insurrection; you preserve discipline in the army and navy by means of courts martial; you preserve the purity of the civil administration by impeachment of dishonest magistrates; and crimes are prevented and punished by the regular judicial authorities.” Of trials by military commissions, in the war areas, he sai<j: “I have made no allusion to their history in the last five years. But what can be the mean*567ing of an effort to maintain them among ns ?” This was an admission of their validity in the theater of war and their invalidity in pacific territory. Milligan did not apply for his writ nntil after the close of the war and it was not decided until December, 1866. A sitting court whose process is obstructed by insurrec-tionary force is, in a practical sense, no court and might as well be “closed” or “overthrown.”
In dealing with grave questions such as this, we must govern ourselves by settled rules and principles of law, including the rules of construction and interpretation. It is not permissible to set aside or ignore them in trivial cases. The greater the moment of the question or matter involved, the greater the reason for strict adherence to law and observance of distinctions in the application of principles and precedents.