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. 1, 12 L. Ed. 581, 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 too 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 rights 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? 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 use 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 Constituton upon the powers of the states. The federal government assumed no obligation to do for the states what they can do for themselves, 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?"

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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 jurisdiction.' Having 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? No 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 said: "I have made no allusion to their history in the last five years. But what.can be the meaning of an effort to maintain them among us?" 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 until after the close of the war, and it was not decided until December, 1866. A sitting court, whose process is obstructed by insurrectionary 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 con

struction 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.

5. Ex parte McDONALD.

(Supreme Court of Montana, 1914. 49 Mont. 454, 143 Pac. 947, L. R. A. 1915B, 988, Ann. Cas. 1916A, 1166.)

Petitions for writs of habeas corpus by Mitchell McDonald and others, united with a petition for the same writ by Dan Gillis. Writs denied as to the first petitioners, and granted as to the last; the petitioner being remanded for trial.

SANNER, J. On September 1, 1914, Hon. S. V. Stewart, Governor of this state, issued his executive proclamation, as follows:

"Proclamation.

"Whereas, it has become apparent that conditions of lawlessness and defiance of authority prevail in the county of Silver Bow, state of Montana, and that combinations to resist the execution of process exist in said Silver Bow county, and that the power of the county has been exerted and has not been sufficient to enable the officers having process to execute it; and

"Whereas, it has been represented to me by properly constituted authorities that the peace officers of said county are unable to secure service of process and compliance with the law; and

"Whereas, it is made sufficiently to appear to me that peace and quiet cannot be re-established in said county of Silver Bow without the aid of some force other than the present constituted authority of said county:

"Now, therefore, I, S. V. Stewart, as Governor of the state of Montana, under and by virtue of the authority vested in me by the Constitution and the statutes of said state, do hereby proclaim the said county of Silver Bow, state of Montana, to be in a state of insurrection, and do hereby declare that said Silver Bow county, state of Montana, be and is hereby under martial law, and under the jurisdiction of the military authorities of said state of Montana; and such military forces as may be ordered into service to enforce the provisions of this proclamation shall be under the command of Major Dan J. Donohue. This proclamation to continue until the same shall be revoked or modified.

"By the Governor:

"A. M. Alderson, Secretary of State."

[Signed] S. V. Stewart.

In accordance with the above proclamation, military forces of the state under the command of Major Dan J. Donohue arrived in Silver Bow county, took military possession thereof, and such military pos

session has since continued and still continues. On the 12th day of September, Mitchell McDonald, Owen Smith, Joseph Bradley, E. W. Malone, Ed Ross, and James Chapman filed in this court their petitions for writs of habeas corpus, alleging, in substance, that they were being unlawfully detained and restrained of their liberty by the Governor and by Major Donohue and certain other military officers of the state who were named as respondents, in that the petitioners had been. arrested without warrant and were being held without bail, to be tried, without a jury, before an alleged court or tribunal set up by the military authorities, upon charges to the petitioners unknown, and this notwithstanding they had infringed no law and were not members of the organized militia of the state. To these petitions respondents made return, setting forth their official character, the proclamation of the Governor, and also a proclamation made by Major Donohue upon his arrival in Silver Bow county with the military forces, and alleging that said county was then in a state of insurrection; that the emergencies of the situation demanded the arrest and detention of the petitioners for the successful accomplishment of the purpose for which said military authorities had been sent into Silver Bow county by the Governor, "such detention for the present being necessary to prevent the petitioners from committing overt acts in defiance of the military authority of said military forces"; that the said petitioners were leaders of those engaged in insurrection, and had been, and if discharged from arrest, would be, active participants in fomenting and keeping alive the condition of insurrection existing in Silver Bow county; and that it is the purpose of the respondents to release and discharge petitioners. from military arrest as soon as that can safely be done with reference to the suppression of the existing state of insurrection, and then surrender them to the civil authorities, to be dealt with in the ordinary course of justice after such insurrection is suppressed. Upon the return and the evidence taken at the hearing, this court made an order denying the release of petitioners, with leave to re-petition after 30 days, if at that time they had not been delivered to the civil authorities and the courts were then open and able to execute their process. The reasons for that order will be set forth in the course of this opinion.

Thereafter, and on September 24, 1914, Dan Gillis filed his petition for a writ of habeas corpus, alleging unlawful detention and restraint by the same respondents, and that such detention and restraint are had and claimed by virtue of a commitment issued on September 21, 1914, by Jesse B. Roote, as major and judge of a certain summary court set up by the military authorities in Silver Bow county, after an alleged trial before said Jesse B. Roote without a jury, upon a charge of assaulting and resisting an officer, and in which said proceeding said Jesse B. Roote assumed to adjudge the petitioner guilty and to render judgment that he be imprisoned in the county jail in Silver Bow county, or any prison in said county, for the term of 11 months and pay a fine of $500, and all this notwithstanding all of the district courts of said Silver Bow county were during the period covered by said proceeding, and since have been, open and actively attending to business, including the trial of causes. The effect of the return to this petition is to admit the detention of the petitioner under the commitment above

mentioned, and such detention is sought to be defended upon the following grounds:

"That by the proclamation of the Governor martial law became established in Silver Bow county; that by the proclamation of Major Donohue the summary court above referred to was created, and it was ordered that all acts which would constitute an offense or offenses under the penal laws of Montana or the ordinances of the city of Butte, as well as any act which would hinder or tend to hinder, delay, or obstruct the work of the military forces in restoring order, should be punishable as offenses under the martial law, and that such punishments should be inflicted as in the judgment of said officer constituting said summary court in cases of minor offenses should be suitable.' It is also respectfully claimed 'that the Supreme Court of Montana is without jurisdiction in the premises to discharge said Dan Gillis from arrest and imprisonment by reason of the facts and things hereinbefore recited.'

It will be readily noted that the position taken by the respondents in the Gillis case is much broader than that presented by the returns in the causes first presented. The respondents now maintain :

"That the Governor, as the chief executive officer of the state, has and had the authority, under the Constitution and statutes of the state, to issue the proclamation referred to, and to order the state troops into the district described therein, and that when the proclamation, as is the case here, declares absolute martial law, that of itself has the effect of suspending all governmental civil tribunals, and that the supreme authority and responsibility of government is thereby vested in the military forces,* and such military forces, in the discharge of the duties resting upon them, may establish courts for the trial of offenders who violate military orders or who violate the laws of the state within the troubled zone.

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The questions thus involved are extremely grave and far-reaching in effect.

A. That the Governor had the authority to proclaim a state of insurrection to exist in the county of Silver Bow, and to detail the organized militia of this state to suppress such insurrection, is settled by the express language of our Constitution:

"The supreme executive power of the state shall be vested in the Governor, who shall see that the laws are faithfully executed. The Governor shall be commander in chief of the militia forces of the state, * * * and shall have power to call out any part or the whole of said forces to aid in the execution of the laws, to suppress insurrection or to repel invasion." Const. art. 7, § 5.

Nor is there the slightest doubt that, as he must determine, so he alone can determine, when a state of insurrection exists and when the conditions require the interposition of military aid. Neither this court. nor the local authorities can be the arbiter in such a matter. Not this court, for it exercises judicial functions alone; and not the local authorities, for, although the enforcement of the law is primarily with them, public opinion and official attitude may be dominated by the forces who would take the law into their own hands. In every age and in every country there has come a time when portions of the peo