ries," but all costs and expenses incurred in procuring said site shall be paid by the citizens of New York furnishing such site as provided in said

is

SECTION 1. That to enable the Secretary of War to enlarge the military post at Plattsburgh, N. Y. to the capacity of twelve companies, and for beginning the construction of the necessary buildings, barracks, quarters, kitchens, mess halls, stables, store houses and magazines, there is appropriated from any money in the treasury not otherwise appropriated the sum of $200,000.

§ 2. That the Secretary of War is hereby authorized to accept, free of cost to the United States a donation of a tract of not less than 500 acres of land for a target range and other military purposes at or near the post at Plattsburgh barracks, N. Y. Provided, That in his judgment the said tract of land is found in all respects adequate and suitable to meet the wants of the post, and that the title shall have been declared valid by the AttorneyGeneral of the United States; and provided further, that no part of said sum hereby appropriated shall be expended until the aforesaid tract of land shall have been conveyed to, and accepted by, the United States.

Another act of Congress on this subject, is as follows:

Mississippi River Commission. For salaries of the Mississippi River Commission from July 1, 1890 to September 18. 1890 inclusive, $1,950. Provided, that in acquiring land for the enlargement of the military post at Plattsburgh, N. Y., as provided for by the act of Congress, approved February 7, 1891, the Secretary of War is authorized to proceed in accordance with sections 4, 5 and 6 of the act approved February 22, 1867, entitled, "An act to establish and protect national cemete

The sections referred to in the act of February 22, 1867, provide for the acquisition by purchase or condemnation of lands for national cemeteries and the act of July 1, 1870 declares that from the time any State legislature gives its consent to the purchase by the United States the jurisdiction of the United States over the same is the same as that granted in section 8, Article 1, of the Constitution; that is, exclusive.

* * *

Now suppose a crime has been committed on this military reservation: the first thing to do is to arrest the offender. It does not matter who is the first to make the arrest. Suppose the United States first gets hold of him. Then there is no power that can take him away out of its hands unless the commanding officer acting in behalf of the United States, is willing voluntarily to surrender him. But if he chooses to hold him, the law is perfectly plain and well settled that he may do so. On this point I quote from Beach's Modern Equity Practice (Vol. 1, p. 35, § 27). He says: "It has long been a settled rule of law in all cases of conflict of jurisdiction between the federal and State courts that the court that first takes cognizance of the controversy is entitled to retain jurisdiction to the end of the litigation and incidentally to take possession or control of the subject matter of the dispute to the exclusion of all interference from other courts of co-ordinate jurisdiction." And in a note he cites authorities, and says, "It has been held by an almost unbroken current of authorities that * * * no State court can interfere with the custody and administration of the res which a federal court has lawfully in custody."

I also find this case among the decisions of the Supreme Court of the United States.

(Supreme Court 1878, Coleman v. Tenn. 97 U. S. 509.)

A. charged with committing murder in Tennessee whilst there in the military service of the United States during the rebellion, was by a court martial then and there convicted and sentenced to suffer death. The sentence for some cause unknown was not carried into effect. After the constitutional relations of that State to the Union were restored, he was, in one of her courts, indicted for the same murder.

To the indictment he pleaded the conviction before the court martial; the plea being overruled, he was tried, convicted and sentenced to death.

Held, 1. That the State court had no jurisdiction to try him for the offense, as he, at the time of committing it, being a member of the United

States forces in military occupation of the country, was not amendable to the laws of Tennessee.

2. His plea, although not proper, inasmuch as it admitted the jurisdiction of that court to try and punish him for the offense, if it were not for such former conviction, need not prevent the Supreme Court from giving effect to the objection founded on defendant's military character.

3. The judgment must be reversed and defendant discharged from custody of the sheriff on the conviction in the State court; but he should be delivered up to the military authorities to be dealt with according to law, under the conviction of court martial.

And a State court in Texas even went further and held in 1892: "In a cession to the United States by a State of land for a military post, a reservation of 'concurrent jurisdiction' to serve State civil and criminal process in the ceded place does not defeat the exclusive jurisdiction of the United States over the ceded place (Constitution, U. S. Art. 1, Sec. 8 sub. 18) and the State courts have no jurisdiction of crimes committed thereon." (Lasher v. State, Tex. App. 17 S. W. 1064.)

The United States having thus acquired and asserted its jurisdiction, proceeds to deal with any case that may arise and cannot be interfered with by any civil courts whatsoever. Its method of dealing with those cases is generally by court martial, and on this subject, the Supreme Court of the United States has said:

'Within the sphere of this jurisdiction the judgment and sentences of court martial are as final and conclusive as those of civil tribunals of last resort." (2 Sawyer, 402; 20 How. 82) and further: "The only authority of the civil courts is 'to inquire whether the military authorities are proceeding regularly within their jurisdiction. If they are, the civil courts can not interfere, no matter what errors may be committed in the exercise of their lawful jurisdiction.'" (9 Sawyer, 52 Re. McVey, 23 Fed. Rep. 878).

Further on this subject: "Where two tribunals have concurrent jurisdiction, the one which first obtains possession of the subject matter or jurisdiction of the particular cause, must adjudicate and neither party can be forced into another's jurisdiction." (Supreme Court, 1824, Smith v. McIver, 9 Wheat., 532, etc.)

When, however, either court has proceeded to a finality, the other may come in and proceed against the prisoner. In one case (that of Captain Howe, referred to by Winthrop, p. 112, note)." the action of the court martial was suspended for more than two years, while the civil proceedings against the accused were pending."

In those cases where the jurisdiction is concur

rent, the way the civil courts may get possession of the party is either by a mere oral request, by presenting an indictment and demanding the prisoner or by a writ of habeas corpus.

The military authorities might surrender him as a matter of courtesy on a mere verbal request and they might properly refuse to surrender him even on a writ of habeas corpus, if issued by a State court. It would be different with a federal, i. e., a United States court.

It is to the latter that reference is had in the decision of the Supreme Court of the United States, rendered in 1891, on the subject of habeas corpus, as follows:

"The civil courts may, in any case, by means of the writ of habeas corpus, inquire into the jurisdiction of a court martial, and if the person condemned was not amenable to its jurisdiction, may discharge him from sentence, but the civil courts by habeas corpus can exercise no supervisory or correcting power over the proceedings of a court martial and no mere errors in their proceedings are open to consideration." (Reversing 38 F. 84, 137 U. S. 147; Winthrop, Military Law, p. 779, note 2).

The proper method to be pursued by military officers is indicated in article of war No. 59. Under that article they are obliged to deliver up an accused upon application duly made, but at the same time they can insist on the application being duly made and in proper form, provided of course, the government does not intend to try the accused. If it does and its jurisdiction has attached, the civil court must wait until the end of the proceedings in the court martial. In Tarble's case (13 Wallace, 397), the Supreme Court of the United States considered very fully the question of State and federal jurisdiction and, inter alia, held that a State judge has no power to issue habeas corpus for the discharge of a person held by authority, or under color of authority, of the United States.

In Ableman v. Booth (21 How. 506) the Supreme Court held that habeas corpus issued by a State court had no authority within the limits of United States sovereignty.

Both of these cases were discussed fully and confirmed in the case of Robb v. Connelly (111 U. S. 632-4), and the decisions made and principles enunciated are embodied in articles 1060-'61-'62 of our existing army regulations as follows:

1060. "A State court or judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceedings under a writ when issued for the discharge of a person held under the authority, or claim and color of the authority, of the United States by an officer of that government.

"If, upon the application for the writ, it appears that the party alleged to be illegally restrained of

Among the more recent cases where this subject is very fully discussed both historically with much learning and judicially with forceful reasoning, I will make the following very full extracts from the case of the Fort Leavenworth R. R. Co., plaintiff in error, against Percival G. Lowe, sheriff of the county of Leavenworth (114 U. S. 542), where it was held:

1. The legislative power of Congress is exclusive over lands within a State purchased with its consent by the United States for a constitutional purpose. 2. Where the United States acquires lands within a State in any other way than by purchase with its consent, forts, arsenals or other public buildings erected thereon for the use of the general government, as instrumentalities for the execution of its powers will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed. But, when not used as such instrumentalities, the legislative power of the State over the places acquired will be as full and complete as over any other places within its limits.

3. The cession of lands by a State to the United States may be upon such conditions as the State may see fit to annex not inconsistent with the free and effective use of such lands for the purposes intended.

4. After the admission of the State of Kansas, the United States retained only the rights of an ordinary proprietor in the Fort Leavenworth Military Reservation; except as an instrument for the execution of the powers of the general government, that part of the tract, which was actually used as a fort or military post was beyond such control of the State, by taxation or otherwise, as would defeat its use for those purposes. The clause of the act of the Legislature of Kansas of February 23d, 1875, to cede jurisdiction over said reservation to the United States, saving to the State the right to tax railroad, bridge and other corporations, their franchises and property on said reservation is valid and a tax upon a railroad paid to the State cannot be recovered back.

Decided May 4, 1885.

lands upon which public buildings have been erected will serve to explain the nature of their jurisdiction over such places, and the consistency with each other of decisions on the subject by federal and State tribunals, and of opinions of the attorney-general.

"When the title is acquired by purchase by consent of the legislature of the States the federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that congress shall have like authority over such places as it has over the district which is the seat of government, that is, the power of exclusive legislation in all cases whatsoever.' Broader or clearer language could not be used to exclude all other authority than that of congress, and that no other authority can be exercised over them has been the uniform opinion of federal and State tribunals and of the attorneys-general.

"The reservation which has usually accompanied the consent of the States that civil and criminal process of the State courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them, but is admitted to prevent them from becoming an asylum for fugitives from justice. And congress, by statute passed in 1795, declared that cessions from the States of the jurisdiction of places where light-houses, beacons, buoys or public piers were or might be erected, with such reservations, should be deemed sufficient for the support and erection of such structures, and if no such reservation had been made, or in future cessions for those purposes should be omitted, civil and criminal process issued under the authority of the State or of the United States might be served and executed within them. (1 Stat. at L., chap. 40). "Thus in U. S. v. Cornell, 2 Mass. 60, it was held by Mr. Justice Story that the purchase of land by the United States for public purposes, within the limits of a State, did not of itself oust the jurisdiction or sovereignity of the State over the lands purchased, but that the purchase must be by consent of the legislature of the State, and then the jurisdiction of the United States under the Constitution became exclusive. In that case the defendant was indicted for murder committed in Fort Adams, in Newport Harbor, Rhode Island. The place had been purchased by the United States with the consent of the State, to which was added the reservation mentioned, as to the service of civil and criminal process within it. The main questions presented for decision were, whether the sole and

"This brief statement as to the different modes in which the United States have acquired title to

United States without a formal act of cession, and whether the reservation as to service of process made the jurisdiction concurrent with that of the

State. The first question was answered, as above, that the purchase by consent gave the exclusive jurisdiction, and as to the second question, the court said: "In its terms it certainly does not contain any reservation of concurrent jurisdiction or legislation. It provides only that civil and criminal process issued under authority of the State, which must, of course, be for acts done within, and cognizable by the State, may be executed within the ceded lands, notwithstanding the cession. Not a word is said from which we can infer that it was intended that the State should have a right to punish for acts done within the ceded lands. The whole apparent object is answered by considering the clause as meant to prevent these lands from becoming a sanctuary for fugitives from justice for acts done within the acknowledged jurisdiction of the State. Now, there is nothing incompatible with the exclusive sovereignty or jurisdiction of the State that it should permit another State in such cases to execute its process within its limits. And a cession of exclusive jurisdiction may well be made with a reservation of a right of this nature, which then operates only as a condition annexed to the cession, and as an agreement of the new sovereign to permit its free exercise as quoad hoc his own process. This is in the light in which clauses of this nature (which are very frequent in grants made by the States to the United States) have been received by this court on various occasions on which the subject has been heretofore brought before it for consideration, and it is the same light in which it has also been received by a very learned State court. In our judgment it comports entirely with the apparent intention of the parties, and gives effect to acts which might otherwise, perhaps, be construed entirely nugatory. For it may well be doubted whether congress is, by the terms of the Constitution, at liberty to purchase lands for forts, dock yards, etc., with the consent of the State Legislature, where such consent is so qualified that it will not justify the exclusive legislation of congress there. It may well be doubted if such consent be not utterly void. Ut res majis valeat quam pereat, we are bound to give the present act a different construction if it may reasonably be done; and we have not the least hesitation in declaring that the true interpretation of the present proviso leaves the sole and exclusive jurisdiction of Fort Adams in the United States.

The case referred to in which the subject was considered by a learned State Court is that of Commonwealth v. Clary, 8 Mass 72. There the Supreme Court of Massachusetts held that the courts of the commonwealth could not take cognizance of offenses committed upon lands in the town of Springfield purchased with the consent of the commonwealth by the United States for the purpose of

erecting arsenals upon them. That was a case of a prosecution against the defendant for selling spirituous liquors on the land without a license, contrary to a statute of the State. But the Court held that the law had no operation within the lands mentioned. The territory" it said on which the offense charged is agreed to have been committed is the terrritory of the United States over which the Congress have exclusive power of legislation." It added that, "The assent of the commonwealth to the purchase of this territory by the United States has this condition annexed to it, that the civil and criminal process might be served therein by the officers of the commonwealth. This condition was made with a view to prevent the territory from becoming a sanctuary for debtors and criminals; and from the subsequent assent of the United States to the said condition, evidenced by their making the purchase, it results that the officers of the commonwealth in executing such process, act under the authority of the United States. No offenses committed within that territory are committed against the laws of the commonwealth, nor can such offenses be punished by the courts of the commonwealth, unless the Congress of the United States should give to the said courts jurisdiction thereof.

In Mitchell v. Tibbets before the same court, years afterward (17 Pick, 298), it was held that a vessel employed in transporting stone from Maine to the navy yards in Charlestown, Mass., a place purchased by the United States, with the consent of the State was not employed in transporting stone within the commonwealth, and therefore committed no offense in disregarding a statute making certain requirements of vessels thus employed. The court said, that to bring a vessel within the description of the statute, she must be employed in landing stone at, or taking stone from, some place in the commonwealth, and that the law of Massachusetts did not extend to and operate within the territory ceded, adopting the principle of its previous decision in 8 Massachusetts. In March 1841, the House of Representatives of Massachusetts requested of the Justices of the Supreme Judicial Court of that State, their opinion whether persons residing on lands in that State, purchased by or ceded to the United States for navy yards, arsenals, dock yards, forts, light-houses, hospitals and armories were entitled to the benefits of the State common schools for their children in the towns where such lands were located, and the justices replied: where the general consent of the commonwealth is given to the purchase of territory by the United States for forts and dock yards, and where there is no other condition or reservation in the act granting such consent, but that of a concurrent jurisdiction of the State for