(dissenting) :
May citizens accused of civil offenses be tried, sentenced, and imprisoned or executed, by military commissions at the wall of the Governor of this State, notwithstanding the civil courts having jurisdiction of the offenses are open? This is the question made by the record in these cases. It is none other. Nor can it be reduced to any Other. The question is not that of the power of the Governor to use .the militia to execute the laws, suppress insurrection, and repel invasion. That the Governor has constitutional and statutory power so to use the militia and thereby to arrest persons as far as it is reasonably necessary, no one will deny. But because the Governor has this power, must judicial construction run random and thrust upon the citizens of this State military courts for the trial of civil offenses, in the very face of the direct inhibitions against such procedure contained in our Constitution, and regardless of all constitutional guaranties?
Not a case cited in the majority opinion, other than the former decision of the majority in the Nance and Mays cases, not an authority relied on by the majority in these present cases of those former ones, sustains the holding that citizens may be tried and condemned for civil offenses by military commissions at the unrestrained will of the executive when the courts having jurisdiction of those offenses are open and operative.
But whatever might be the law elsewhere, our own Constitution should control. The doctrine promulgated by the *610majority and that Constitution can not stand together. They are totally at variance. By the most direct and explicit provisions, the people of this State when they adopted the Constitution supposed they had forever precluded insistence upon such arguments as the majority opinion puts forth. They meant to guard against such misconception of constitutional liberty as that into which the majority of the Court has fallen. The people declared against the suspension of the Constitution at any time, war or no war, on any plea whatsoever. Yet the majority of this Court holds that it may be suspended whenever the Governor by proclamation, right or wrong, sees fit to suspend it. The people ordained that the privilege of the writ of habeas corpus should never under any circumstances be suspended. Yet the holding of the majority is do the effect that the Governor may make that sacred writ totally unavailing. The people further ordained that no citizen not in the military service should ever be called to answer before a military court for a civil offense. Yet the majority holds that any citizen may be subject to trial and condemnation before a military commission whenever the Governor sees fit to displace the civil courts by a proclamation to that effect.
How can the majority decision in these cases and the former ones be upheld in the face of the Constitution of this State? Hear some of its plain provisions again, and then say if the Constitution may be departed from, and a citizen not a soldier subjected to trial and punishment before a military commission for a civil offenses
“The provisions of the Constitution of the United States, and of this State, are operative alike in a period of war as in time° of peace, and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism.” Art. 1, sec. 3.
“The privilege of the writ of habeas corpus shall not be suspended. Ho person shall be held to answer for treason, felony, or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury.” Art. 3, sec. 4.
“Ho person shall be deprived of life, liberty, or. property, without due process of law, and the judgment of his peers.” Art. 3, sec. 10.
*611“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 this State.” Art. 3, sec. 12.
“Trials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials, the accused shall be fairly and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defense; and there shall be awarded to him compulsory process for obtaining witnesses in hi's favor.” Art. 3, sec. 14.
“The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.” Art. 3, sec. 17.
When we observe these provisions of our State Constitution or look at that instrument as a whole, we see how clearly applicable to it are the words applied to the Federal Constitution by a preeminent authority: “There is nothing in that instrument to indicate that the guaranties which it affords for life or property are to cease on the occurrence of hostilities. A contrary design is manifested unmistakably with the utmost clearness.” Hare’s American Constitutional Law 963.
But, says the majority, it was implied and presumed that these constitutional provisions were not always to be followed. See syl. 2, in the cases of Nance and Mays, TI S. E. 243.. What legal doctrine is this ? When before has it been declared that express provisions of a constitution may be set aside by mere implication and presumption? From what does the implication and presumption arise? The majority says, from the provision which establishes a militia and gives the Governor power to call out the same to execute the laws, suppress insurrection, and repel invasion, and from the inherent right of sovereignty to preserve itself. In other words, because the *612Constitution provides for the existence of a militia, it means that the militia shall have power to supplant the civil law. Yet the Constitution has said plainly that the militia should not supplant the civil law — should not try citizens for civil offenses and deprive them of the precaution of an indictment before a grand jury and the right to the judgment of their peers. Can the mere provision for a militia annihilate the other and more explicit provision? Does the one repeal the other? By every known rule of construction, they must be made to stand together. True, a militia is provided for; but unmistakable restriction is placed on the use of that militia. Is it not within the power of a constitution to limit and restrict? Are not such instruments- supposed to construct, mark out, and limit ?. Must the express restrictions as to the use of the militia give way merely because of the provision which brings the militia into existence? -But, further, the majority says that there is a presumption that in the promulgation and adoption of the Constitution the people did not mean to abolish a generally recognized incident of sovereignty, the power of self preservation of the State by its military forces in cases of invasion, insurrection, and riot. If there ever existed a generally recognized incident of sovereignty whereby a state could deprive its own citizens of presentment and trial by jury for civil offenses and subject them to trial for such offenses before military courts, our people certainly did mean to abloish that incident, for they used explicit words sufficient to abolish the same. It can not be presumed that the people meant to retain military trial of its citizens for civil offenses, when they explicitly say that no such trial shall ever be had. Ho, the founders had good reasons to abolish it and to leave no room for implication or presumption to the contrary. The argument of the majority goes to this, the founders could not do away with that implication and presumption unless they abolished the militia itself. Having retained the militia, the majority would say, the makers of the Constitution retained trial of citizens by military courts regardless of the specific and direct words of those makers to the contrary. Such argument leads to palpable absurdity.
In consonance with the provisions of our Constitution, the *613Legislature has specifically provided for the militia to be used only in aid of the civil authorities when such a state of affairs exists as that disclosed by the record in these cases. Code 1906, ch. 18, secs. 55-64. Indeed throughout the whole military code, the relation of the militia to the civil law is always apparent. Its existence and use for the enforcement of the .civil law, not its own law, is clearly recognized. Nowhere is its independence of the civil law even hinted at. The militia is a citizen soldiery. It is not an imperial army. Nor is it at all in keeping with American traditions even to think of making it such, or giving it dominancy at any time to supplant the ordinary laws of the land. Why was not the true relation of the militia recognized for the enforcement of law.in Cabin Creek District? What necessity existed for using the militia differently from the way the Legislature has said it shall be used when such conditions exist as those disclosed in these cases ? Why disregard the plain direction of the statute which says it shall be used in aid of the civil authorities? It is no answer to say that the legal method is insufficient. The law-makers deemed it sufficient, and provided no other method. Can the Governor renounce the wisdom of the law-makers, and assert his will through the militia against our own citizens as though they were foreign enemies?
Truly it would seem that the use of the militia in aid of the civil authorities is 'all sufficient for the quelling of any unlawful disturbance in a single magisterial district of this great State and for the bringing of all offenders to trial before the constitutional courts. But it is said that the Governor’s proclamation establishing other means can not be reviewed by the courts. Is the Governor thus immune from the law? Can he, because of an assault and battery between two persons, or the murder of one person by another, issue a proclamation of martial law, and through the use of the militia order the offender to be imprisoned or hanged, and the courts have no power in the premises ? If he is to be the absolute judge of the necessity for establishing martial law in one case, why not in any case though no necessity exists ? That the illegal acts of the Governor may be reviewed by the courts as well as those of any other officer, certainly needs no argument. This Court has declared *614a veto of the Governor to be illegal and void. Acts of the Legislature are set aside by the courts as illegal. Bemember, the writ of habeas corpus is always available in this State. Our Constitution plainly says it shall be. It makes no exception even for invasion and rebellion, as most constitutions do. By that writ any unlawful imprisoning of a citizen may be reviewed. By it a Governor’s proclamation if not warranted in law and in fact must give way. That great writ of freedom can never rightly be proclaimed away in this State. Executive, or even legislative acts, can not suspend it.
My position in these cases, as in the Nance and Mays cases, is rested squarely on our own Constitution and laws. Why go elsewhere for authority? But it is not wanting elsewhere. It is prevalent and pronounced in opposition to the majority holding.
In connection with what may be said by me in these cases, my former dissenting opinion in the similar cases of Nance and Mays, 77 S. E. 2'47, should be read as applicable, explanatory, and additional.
The argument that to preserve the life of the State the Governor must be given such extreme and dominant power as the majorty has accorded to him,, may be answered by asking one question: Is this great State in its death throes because of rioting and unlawful acts in a single magisterial district? If the State has become so impotent in its sovereign powers under the civil law as to be in danger of its existence because of mere private dissensions and disturbances in a small isolated district, it is time for patriotic citizens to arise. The State can not be preserved by a suspension of constitutional rights. Nothing will kill it quicker. ’ The words of the Supreme Court of the United States on this line are most significant: “It is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could well be said that a country, preserved at the sacrifice of the cardinal principles of liberty, is not worth the cost of preservation.” Ex -parte Milligan, 4 Wall. 126.
< Nor does the suggestion that the civil courts, officers, and juries are inefficient, sound well. That is the same excuse that is invariably given for suspending the Constitution and *615laws when a lynching takes place. Why were not the civil authorities aided by the militia as the law directs? If this had been done, would they have been inefficient? It is a mere assumption to say that they would-have been. Their functions were supplanted. The militia, under proclamation of the Governor, set up a court of its own, and denied all criminal jurisdiction of the civil courts and officers, even as to civil offenses committed before the proclamation. Say the civil authorities are inefficient. Do two wrongs ever make a right?
It may be claimed that the majority opinion only authorizes arrest and detention until the disturbances are suppressed. Why the extended argument and citation seeking to justify trials, sentences, and punishment by military commissions. What does the approval and reaffirmance of the holding in the Nance and Mays cases mean? The majority refused to discharge Nance and Mays from the penitentiary, thereby upholding their military sentences to that penal institution. Read again the syllabus to the opinion in those cases. There it is directly held that the militia may not only arrest and detain, but by military commission may try citizens and sentence them to the penitentiary, for civil offenses amounting under the civil law only to misdemeanors. Moreover, read syllabus 2 to the majority opinion herein. It holds that the civil power as to offenses is excluded by the military proclamation, and that 'the usages of nations prevails over our own citizens. In fact it holds that our citizens are to be dealt with as alien enemies. That the issue in these cases involved the question of trial, sentence, and punishment by military commission in the place of the civil courts can not be gainsaid when the petitions, writs, returns, and briefs are examined. That petitioners sought not discharge from custody, but freedom from military trial by an order of this Court remanding them to the civil courts for trial, their pleadings show. That the military authorities were claiming absolute jurisdiction to try, sentence, and punish petitioners and were denying all jurisdiction of the civil courts in the premises, was charged by petitioners and not denied by the respondents. That charges and specifications accusing petitioners of civil offenses were pending before a military commission, is shown by the respondents themselves in their returns. That immedi*616ately after the decision in these cases petitioners were put on trial before a military commission and by it tried for the civil offenses charged, is common notoriety from the public press. That the military, authorities claim the right to act absolutely independent of the civil authorities in the so-called military district, and to try, condemn, sentence, and imprison in the state penitentiary for a specific term, any citizen for a civil-offense, whether connected with the disturbance between the mine owners and the miners or not so connected, is a fact pregnant from every part of the records in these cases' and the former cases of Nance and Mays, particularly from the proclamations and military orders of the Governor. That the military authorities have been and still are exercising such anomalous jurisdiction, that they even deny that the sheriff of the county may enter the district which they have marked out and there serve the process of the civil courts, is a matter of State history. The issue was clear. It was this: Should the petitioners be remanded for trial to a military court claiming exclusive and final jurisdiction of the civil offenses charged against them, and thus be put in jeopardy of conviction and confinement in the state penitentiary without presentment and trial by jury? This Court should have promptly condemned the unwarranted procedure to which the majority subjected petitioners. It should have given notice to all that this State is a land of constitutional courts, not one of imperial military courts.
Petitioners were arrested in the city of Charleston on a warrant of a justice of the peace, a civil court, charging them with civil offenses, that of conspiring to inflict bodily -injury on persons whose names were unknown, and other offenses. They were taken before the justice, within sight of the courthouse, where the -civil courts of the county were open and in the exercise of their powers. Instead of giving the accused preliminary examination, and upon the finding of probable cause holding them to answer the grand jury, the justice directed the special constables having them in charge, by endorsement on the warrant, to deliver them to the military authorities 'in the so-called military district. The exception of petitioners to such unknown procedure did not- avail. They were so delivered and *617were about to be put on trial before a military commission, for tlie same offenses charged before the civil court, when the writs of habeas corpus were awarded them. Though petitioners were arrested and brought before a civil 'court — the justice of the peace — that court in absolute disregard of their rights and the law governing it, sent them to the military authorities -in a distant part of the county. This illegal procedure alone erititled petitioners to be remanded to the civil courts. Yet it simply illustrates the extreme to which disiegard of constitutional and legal procedure has run. Instead of recognizing the true order of the statute whereby a militia is to aid the civil authorities, the law is reversed, and the civil authorities are used to aid the military power. Verily indeed has the military power been made absolute, independent, and dominant in West Virginia!
Why resort is made to sections 6, 7, 8 and 9, of chapter 14 of the Code, one familiar with the record in these cases can not conceive. No reliance was placed on these sections by the military authorities. They were not content with the limited powers mentioned therein, for these sections do not provide for military trial and sentence. Nothing short of a court of their own and the sending of citizens to the penitentiary for specific terms without trial by jury will satisfy the military authorities. Besides, these sections provide only for the arrest of certain persons on a warrant or order issued by the Governor. They were not invoked by the Governor. He issued no warrant or order for the arrest of petitioners. If reliance had been made on these sections, the absence of the basic warrant or order of the Governor would have entitled petitioners to discharge. Is not this elementary law? Again, these sections of the statute apply only to enemies of the State, to those who give aid. support, or information to the State’s enemies, to those who conspire or combine together “to aid or support any hostile action against the United States or this State.” These sections are made for public war, not for the mere private conflict as to which the state is not a party but is only the great conservator of the peace through the civil law. An examination into the origin and history of these'enactments, to say nothing of their direct words, will disclose that they were made for times when *618■enemies seek to overthrow the government. See Ordinances of the Wheeling Convention of 1861, pages 7 and 8; Code 1868, ■eh. 14, secs. 5-9; Acts 1882, ch. 144, secs. 5-9.
A clash between mine owners and miners can not be considered public war, and the participants dealt with as enemies of the State. True it is that in war the enemy, whether a foreign one or a rebel to whom,the status of belligerent has been given, has no legal rights which those opposed to him must respect. But have either the mine owners and their guards on the one :side, or the miners on the other, assumed the status of belligerency against the State? Because of warfare between themselves and violations of the law in relation thereto, has neither ;side any constitutional rights which the State is bound to respect? Nothing in the record justifies the conclusion that •either the mine owners and their guards on the one hand, or the miners on the other, have lost their allegiance to the State by the unfortunate clash between them or by any other act. Neither faction has made war against the State. Each time the militia has been sent to the district, all has remained quiet. Chief Justice Marshall early defined what it is to make war: '“To constitute a levying of war, there must be an assemblage •of persons for the purpose of effecting by force a treasonable purpose Ex parte Bollman, 4 Cranch 75. Nothing even reminding one of treasonable purpose is involved in these cases. Yet the majority opinion deals with the citizens of the district ;as rebels. It deals with a part of Kanawha county as enemy country. In this it can not be sustained by reason or authority. Cabin Greek District has not seceded! The residents of that district are citizens of the State under its ' civil protection, though they may have violated the law. Because one violates the law, does he lose his legal rights? The guiltiest man, if he is not-an enemy in public warfare directly against the State, is entitled to all rights as a citizen. “War, in public law, has, as is well known, a definite meaning. It means a contest between public enemies termed belligerents, and to the status 'thus created, definite legal rights and responsibilities are attached by international and constitutional law. War is thus sharply distinguished from a mere insurrection or resistance to «civil authorityWilloughby on the Constitution, sec. 730.
*619The failure in the majority opinion to observe the sharp distinction between public war and civil disorder, between enmity against the State and individual enmity between citizens of the' State, between rebels and mere violators of the law, between belligerent territory and territory retaining allegiance, accounts for the misapplication of decisions, legislative enactments, and quotations relied on therein. An examination of those decisions, enactments, and quotations with this distinction in view will show how inapplicable they are. They relate to public war and to public enemies. We áre not dealing with public war or with public enemies. With the exception of the Moyer cases, and the Shortall ease, to which reference will be made later, the cases relied on for the majority relate to various questions growing out of public war. That which may be allowable by the usages of nations in a public war can not be applied as against citizens of a State engaged in civil disorder. See Hare’s American Constitutional Law 922. ■“The populace being loyal, and the territory domestic, private rights of persons and property still persist, though subject, as in all other cases, to the exercise of the police powers of the State.” Willoughby on the Constitution, sec. 732. Nor can the Governor by proclamation or otherwise make that public war which in fact is not such. He can not install martial law in a time of peace, when every civil court of the State is open, under the guise of a proclamation of public war which in fact does not exist. “The existence of martial law does not in any way depend upon the proclamation of martial law.” Dicey on the Law of the Constitution 545. “Indeed, it may be said that a State of the Union has not the constitutional power to create, by statute or otherwise, a state of war, or by legislative act or executive proclamation to suspend, even for the time being, all civil jurisdiction.” Willoughby on the Constitution, •sec. 730.
Military commissions have existed in public wars, — in conquered enemy countries. But no military commission for the ■trial of citizens, usurping all criminal jurisdiction of the courts, has ever before been sanctioned or recognized as to a state militia in the quelling of domestic disorder. Indeed the majority cites no adjudicated case in which such trial by *620military commission has been upheld even as to public war. In public wars, military commissions have been installed in conquered foreign territory, or conquered rebellious territory, out of the actual necessity arising from the fact that the courts were closed or were not in sympathy with the obligations -of the conquering country to society. They properly pertain nowhere else. Never before has any State of the Union disowned its civil courts and ordained that military commissions shall take their place. No such thing has been done anywhere since the declaration of the Petition of Right. Yet with us it has been done in the face of the fact that nothing whatever prevented the taking of offenders, arrested- by the militia in the quelling of disorder, before our civil courts and there subjecting them to trial in constitutional form. The way to the courthouse was unobstructed. If the militia could arrest offenders and secure witnesses for its own assumed court, it could do so as readily for the legally organized courts. Nothing so readily establishes respect for the law as respect for it by those in power. The reverse is equally true.
The effort in the majority opinion to sustain military commissions by asserting that the opinion in the Milligan case and the writings of Lieber, Ballantine, and others distinguish between pacific territory and the theater of actual war, can not avail with any one who fully reads the opinion and writings referred to. Neither the Milligan opinion nor the writings of Lieber, Ballantine, and others uphold arbitrary military trial, on any such distinction, or at all. They do distinguish between territory in rebellion seeking to overthrow the government and territory that has not lost its allegiance — between enemies engaged in public war and citizens violating the law. Read them. For instance Ballantine says: “What may be'done on the theatre of actual military operations when our armies are advancing, retreating, or operating within our own territory depends upon military necessity for the public defense, and is to be judged by the circumstances and exigencies of the particular case, which may be reviewed by the courts irrespective of' military proclamations. Citizens cannot be arrested, deported, imprisoned, or put to death by arbitrary military authority when war is raging any more than during a state of peace, and the fact that the *621courts are closed or that a proclamation of Martial Law lias been made will not justify a resort to the arbitrary unregulated exercise of military power.”
The kind of martial law which the majority of this Court upholds is unknown in England and the United States. All the great writers on constitutional law so assert.'
Mr. Dicey, the renowned English author, after quoting the French law which allows constitutional guaranties to be suspended by proclamation, says: “We may reasonably, however, conjecture that the terms of the law give but a faint conception ■of the real condition of affairs when, in consequence of tumult or insurrection, Paris, or some other part of France, is declared in a state of siege, and, to use a significant expression known to some continental countries, The constitutional guaranties are suspended/ We shall hardly go far wrong if we assume that, during this suspension of ordinary law, any man whatever is liable to arrest, imprisonment, or execution at the will of a military tribunal consisting of a few officers who aie excited by the passions natural to civil war. * * * * * Now, this kind of martial law is in England utterly unknown to the constitution. Soldiers may suppress a riot as they may resist an invasion, they may fight rebels just as they may fight foreign enemies, but they have no right under the law to inflict punishment for riot or rebellion.'”. Law of the Constitution 288.
The leading American authority of the present day says: “There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby muitary is substituted for civil law. So-called declarations of martial law are. indeed, often made, but the legal effect of these goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts that will in any way render more difficult the restoration of order and the enforcement of law. During the time that the military forces are employed for the enforcement of the law, that is to say, when so-called martial law is in force, no new powers cure given to the executive, no extension of arbitrary authority is recognized, no civil rights of the citizen are suspended. The *622relations of the citizen to his State are unchanged.” Willoughby on the Constitution, sec. 727.
The majority opinion repeatedly appeals to In re Moyer, 35 Col. 159, and its sequel, Moyer v. Peabody, 212 U. S. 78. These decisions involve no question of trial by military commission. They go no further than to justify an arrest made by military authorities in the suppressing of civil disorder. They plainly negative any recognition of military trial and punishment for an offense in connection with the civil disorder. In the instance to which they relate, the governor of Colorado claimed no right to try and punish by military rule. He was not an advocate of military commissions. His return to the writ of habeas corpus expressly avers that Moyer was to be given over to the civil authorities for trial. Here are its words: "That it is his purpose and intention to release and discharge petitioner from military arrest as soon as the same can be safely done with reference to the suppressing of the existing state of insurrection in the county, and then surrender him to the civil authorities to be dealt with in the ordinary course of justice after such insurrection is suppressed.” And in disposing of the case, the Chief Justice of Colorado lends no recognition to military trial for offenses connected with the civil disorder. Here is what the Chief Justice, speaking of Moyer, says in the opinion: “He is not tried by any military court or denied the right of trial by jury; neither is he punished for violation of the law nor held without due process of law. His arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a continuation of the conditions which the governor, in the discharge of his official duties and in the exercise of the authority conferred by law, is endeavoring to suppress. When this end is reached he could no longer be restrained of his liberty by the military but must be, just as respondents have indicated in their return to the writ,- turned over to the usual civil authorities of the county to be dealt with in the ordinary course, of justice, and tried for such offense against the law as he may have committed.” In the review of this same arrest in the suit of Moyer v. Peabody, supra, Mr. Justice Holmes says: “Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power.” *623He does say that “public danger warrants tbe substitution of executive process for judicial process/’ but his remarks must-be interpreted in the light of the case before him. He could not have meant executive process to try and punish for a civil offense, for that question was not involved in the case. He meant executive process to arrest, not executive process to try and prmish. The former was embraced in the case; the latter was not. Besides, we have seen that he plainly said that such arrests were not for punishment, but to prevent hostile power. No, Colorado had not gone to the extent of disowning and. supplanting her civil courts by military courts. The governor of that state disclaimed any such purpose, but directly answered that he was only acting in aid of the civil authorities.. But with us the contention of the governor in every case has been that his military court may make convicts out of citizens. And. each decision of the majority of this court, viewing the same from the issues involved, to say nothing of the written opinions, has held that the Governor may thus cast upon citizens the stigma of having been confined in the penitentiary, though under-the civil law the offense involved may have been only a petty misdemeanor. If the majority meant to go no further than these Moyer cases go, why has it not long ago said to the mili-tory authorities: You may arrest and detain for the purpose of preventing hostile power, but you can not by military court send offenders to the penitentiary, as the Governor has ordered. If it meant to go no further, why has it refused to discharge Nance and Mays from penitentiary sentences? If it meant to go no further, why has it plainly remanded the present petitioners to miltary trial and the hazard of punishment in the-, penitentiary thereby ?
Whether such length of detention as that involved , in the Moyer cases may prevail in West Virginia where our Constitution has no exception ever allowing a suspension of the privilege of the writ of habeas corpus, need not now be discussed.
Plainly the case of Commonwealth v. Shortall, 206 Pa. St. 165, is no authority to sustain military courts. It involves no-question of trial by a military court. It no more than defines the view of the Supreme Court of Pennsylvania as to what military acts in the quelling of civil disorder may be excused' *624■on the ground of necessity. There a soldier on duty in a disturbed district of the State, acting under military orders for the suppression of the disturbances, shot one who did not obey his command to halt. It was held that the circumstances justified the act. What has this to do with the supplanting of civil trial by military trial? At any rate, see the adverse criticism of that decision in 65 L. R. A. 207.
Moreover, it may be confidently asserted that none of the adjudicated eases cited by the majority, except those criticised or sought to be distinguished by it, have any more relation or come any nearer to the question of military trial than do the Moyer cases and the Shortall case. They are wide of the mark. On the other hand, such military trial as that fostered by the majority, has received the condemnation of many courts — the clarion denouncement of the highest tribunal in this land: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield •of its- protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” Ex parte Milligan, 4 Wall. 120.
In addition to the references made in my dissenting opinion in the Nance and Mays cases, supra, the following, by no means all, will be found enlightening: Willoughby on the Constitution, ch. 52; Dicey on the Law of the Constitution, 280-290, 538-555; Hare’s American Constitutional Law, lecture 44; Story on the Constitution, (5th ed.), see. 1342 and note thereto; Annals of Congress, 9th Congress, 2nd Session, pp. 402-424, .502 et seq.; Johnson v. Duncan, 3 Martin 530, 6 Am. Dec. 673; Ex parte Merryman, Fed. Cas. 9487; In re Egan, 5 Match. 319; Ex parte Benedict, Fed. Cas. 1292; Ex parte Henderson, Fed. Cas. 6349; Johnson v. Jones, 44 Ill. 142; In re Kemp, 16 Wis. 382; Griffin v. Wilcox, 21 Ind. 370; Jones v. Seward, 40 Barb. 563; Congressional Globe, 38th Congress, 2nd Session, pp. 1421-3; Franks v. Smith, 142 Ky. 232; 1 Cooley’s Blackstone, 413; 6 Great American Lawyers, 233-254; Edinburgh Review, Jan. 1902, pp. 79-105,
Is it not a spectacle for the notice of a people who rest their *625liberties on onr form, of constitutional government that in .one of the States of the Union a section thereof is given over to an independent military rule, which admits no power of the civil courts to enter, and which claims cognizance as against all found therein of every imaginable accusation from mere words spoken to perjury, rape or murder? Does the peaceful mountain farmer residing therein realize that he is subject not to the civil’ law but to the will of a military commander who may hear no excuse as to any accusation against him? Do citizens of this Republic passing through that district on one of the great trans-continental lines of railway, realize that for a time they are subject absolutely to the will of one man? It is no excuse to say that the supreme military authority will not be exerted against such. It is bad enough to say that a majority of this Court has held that such authority exists. The majority has held that niartial law — the law and usage of public war — can and does exist in that district. Then that martial law “overrides and suppresses all existing civil laws, civil officers and civil authorities, by the arbitrary exercise of military power; and every citizen or subject, in other words, the entire population of the country, within the confines of its power, is subject to the mere will or caprice of the commander. He holds the lives, liberty and property of all in the palm of his hand. Martial law is regulated by no known or established system or code of laws, as it is over and above all of them. The commander is the legislator, judge and executioner.” In re Egan, 5 Blatch. 321.
The persistency with which a military • rule heretofore unknown has been sanctioned, has demanded this second protest on my part. ' Unfortunate indeed is the generation that forgetteth the memories of its fathers.