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to the said land or lands by gift, purchase or con- ries,” but all costs and expenses incurred in prodemnation, in conformity with the laws of the curing said site shall be paid by the citizens of State of New York: and so long as the said land or New York funishing such site as provided in said lands shall remain the property of the United act of February 1, 1891. States, when acquired as aforesaid, and no longer, The sections referred to in the act of February the same shall be and continue exonerated from all 22, 1867, provide for the acquisition by purchase taxes, assessments and other charges which may be or condemnation of lands for national cemeteries levied or imposed under the authority of the State. and the act of July 1, 1870 declares that from the

$ 5. Any malicious, wilful, reckless or voluntary time any State legislature gives its consent to the injury to, or mutilation of, the grounds, buildings purchase by the United States

the jurisor appurtenances shall subject the offender or

diction of the United States over the same is the offenders to a fine of not less than $20, to which same as that granted in section 8, Irticle 1, of the may be added for an aggravated offense, imprison- Constitution; that is, exclusive. ment not exceeding six months in the county jail Now suppose a crime bas been committed on this or work-house, to be prosecuted before any court

military reservation: the first thing to do is to competent jurisdiction.

arrest the offender. It does not matter who is the $ 6. This act shall take effect immediately.

first to make the arrest. Suppose the United The act of Congress making an appropriation for

States first gos bold of him. Then there is no the construction of new buildings and the enlurge power that can take him away out of its hands unment of the military post it Plattsburgh, N. Y., is

less the commanding officer acting in behalf of the as follows: Approved, February 1, 1891.

United States, is willing voluntarily to surrender Be it enacted, etc.

him. But if he chooses to hold him, the law is Section 1. That to enable the Secretary of War perfectly plain and well settled that he may vio so. to enlarge the military post at Plattsburgh, v Y.

On this point I quote from Beach's Modern to the capacity of twelve companies, and for be- Equity Practice (Vol. 1, p. 35, $ 27). He says: ginning the construction of the necessary buill

" It has long been il settled rule of law in all cases ings, barracks, quarters, kitebens, mess balls,

of contlict if jurisdiction between the federal and stables, store houses and magazines, there is appro

State courts that the court that first takes cognizpriated from any money in the treasury not other

ance of the controversy is entitled to retain juris

diction to the end of the litigation and incidentally wise appropriated the sum of $200,000.

to take possession or control of the subject matter $ 2. That the Secretary of War is hereby author of the dispute to the exclusion of all interference ized to accept, free of cost to the United States a

from other courts of co-ordinate jurisdiction." donation of a tract of not less than 500 acres of

Ind in a note he cites authorities, and says, “ It land for a target range and other military purposes has been held by an almost unbroken current of auat or near the post at Plattsburgh barracks, N. Y. thorities that

no State couut (an interProriileil, That in luis judgment the saiil tract of fere with the custody and administration of the res land is found in all respects adequate and suitable which a federal court has lawfully in custody." to meet the wants of the post, and that the title I also find this case among the decisions of the shall bave been declared valid by the Attorney- Supreme Court of the United States. General of the United States; and provided fur (Supreme Court 1878. Coleman r. Tenn. 9i L. S. ther, that no part of said sum bereby appropriated 509.) shall be expended until the aforesaid tract of land 1. charged with committing murder in Tennessee shall have been conveyed to, inel accepted by, the whilst there in the military service of the United linited States.

States during the rebellion, was by a court martial Another act of Congress on this subject, is as then and there convicted and sentenced to suffer follows:

death. The sentence for some cause unknown was Mississippi River Commission. For salaries of not carried into effect. After the constitutional the Mississippi River Commission from July 1, relations of that State to the l'nion were restored, 1890 to September 18, 1890 inclusive, $1,950). Pro- he was, in one of ber courts, indicted for the same videl, that in acquiring lanıl for the enlargement murder. of the military post at Plattsburgh, N. Y., is pro To the indictment he pleaded the conviction vided for by the act of Congress, approveel iclo before the court martial : the plea being overruled, ruary 7, 1891, the Secretary of War is authorized he was tried, convicted and sentenced to death. to proceed in accordance with sections 4, 5 ind i Ilelil, 1. That the State court had no jurisdicof the act approved February 22, 1867, entitle, tion to try him for the offense, its he, at the time "An act to establish and protect national cemete of committing it, being a member of the United

States forces in military occupation of the country, rent, the way the civil courts may get possession of was not amendable to the laws of Tennessee. the party is either by a mere oral request, by pre

2. His plea, although not proper, inasmuch as it senting an indictment and demanding the prisoner admitted the jurisdiction of that court to try and or by a writ of habeas corpus. punish him for the offense, if it were not for such The military authorities might surrender bim as a former conviction, need not prevent the Supreme matter of courtesy on a mere verbal request and they Court from giving effect to the objection founded might properly refuse to surrender him even on a on defendant's military character.

writ of habeas corpus, if issued by a State court. It 3. The judgment must be reversed and defend- would be different with a federal, i. e., a United ant discharged from custody of the sheriff on the States court. conviction in the State court; but he should be

It is to the latter that reference is had in the dedelivered up to the military authorities to be dealt cision of the Supreme Court of the United States, with according to law, under the conviction of rendered in 1891, on the subject of habeas corpus, as court martial.

follows: And a State court in Texas even went further and " The civil courts may, in any case, by means of held in 1892: “In a cession to the United States the writ of habeas corpus, inquire into the jurisdicby a State of land for a military post, a reservation tion of a court martial, and if the person condemned of 'concurrent jurisdiction' to serve State civil and was not amenable to its jurisdiction, may discharge criminal process in the ceded place does not defeat him from sentence, but the civil courts by habeas the exclusive jurisdiction of the United States over corpus can exercise no supervisory or correcting the ceded place (Constitution, U. S. Art. 1, Sec. 8 power over the proceedings of a court martial and sub. 18) and the State courts have no jurisdiction of no mere errors in their proceedings are open to concrimes committed thereon.” (Lasher v. State, Tex. sideration.” (Reversing 38 F. 84, 137 U. S. 147; App. 17 S. W. 1064.)

Winthrop, Military Law, p. 779, note 2). The United States having thus acquired and as The proper method to be pursued by military ofserted its jurisdiction, proceeds to deal with any ficers is indicated in article of war No. 59. Under case that may arise and cannot be interfered with that article they are obliged to deliver up an accused by any civil courts whatsoever. Its method of upon application duly made, but at the same time dealing with those cases is generally by court they can insist on the application being duly made martial, and on this subject, the Supreme Court of and in proper form, provided of course, the governthe United States has said :

ment does not intend to try the accused. If it does “Within the sphere of this jurisdiction the judg- and its jurisdiction has attached, the civil court ment and sentences of court martial are as final and must wait until the end of the proceedings in the conclusive as those of civil tribunals of last resort." court martial. In Tarble's case (13 Wallace, 397), (2 Sawyer, 402; 20 How. 82) and further: “ The the Supreme Court of the United States considered only authority of the civil courts is to inquire very fully the question of State and federal juriswhether the military authorities are proceeding reg- diction and, inter alia, held that a State judge has ularly within their jurisdiction. If they are, the no power to issue habeis corpus for the discharge of civil courts can not interfere, no matter what errors a person held by authority, or under color of authormay be committed in the exercise of their lawful ity, of the United States. jurisdiction." (9 Sawyer, 52 Re. McVey, 23 Fed. In Ableman v. Booth (21 How. 506) the Supreme Rep. 878).

Court held that habeas corpus issued by a State court Further on this subject: “Where two tribunals had no authority within the limits of United States have concurrent jurisdiction, the one which first oba sovereignty. tains possession of the subject matter or jurisdiction Both of these cases were discussed fully and conof the particular cause, must adjudicate and neither firmed in the case of Robb v. Connelly (111 U. S. party can be forced into another's jurisdiction.” 632–4), and the decisions made and principles (Supreme Court, 1824, Smith v. McIver, 9 Wheat., enunciated are embodied in articles 1060-'61-'62 of 532, etc.)

our existing army regulations as follows: When, however, either court has proceeded to a 1060.“ A State court or judge has no jurisdicfinality, the other may come in and proceed against tion to issue a writ of habeas corpus, or to continue the prisoner. In one case (that of Captain Howe, proceedings under a writ when issued for the disreferred to by Winthrop, p. 112, note).“ the action charge of a person held under the authority, or of the court martial was suspended for more than claim and color of the authority, of the United two years, while the civil proceedings against the States by an ollicer of that government. accused were pending.”

“If, upon the application for the writ, it appears In those cases where the jurisdiction is concur that the party alleged to be illegally restrained of


his liberty is held under the authority, or claim and No application was made for the delivery of Mason color of the authority, of the United States by an to the civil authorities, but he was tried by a genofficer of that government, the writ should be re eral court-martial, for violation of article of war fused. If this fact does not appear, the State judge 62, and sentenced to be imprisoned in the penitenhas a right to inquire into the cause of imprison- tiary for eight years, and to be discharged dishonment and ascertain by what authority the person is orably from the service, with forfeiture of pay and held within the limits of the State; and it is the allowances. duty of the marshal or other officer having the cus The petition was refused and the court held: “If tody of the prisoner, to give, by il proper return,

this court may issue it writ of habeus corpus to reinformation in this respect. But after he is fully view thic judgments of courts-martial (upon which apprised by the return that the party is held by an question this court with holiis its decision), there can officer of the United States under the authority, or be no discharge under it is the court-martial had claim and color of the authority, of the United jurisdiction to try the offender for the offense with States, he can proceed no farther.”

which he was charged, and the sentence was 1061. “Should a writ of habeus corpus, issued by a

which the court-martial could, under the law, proState court or judge, be served upon an army offi

nounce." cer commanding him to produce an enlisted

man, Held, also, "the act being a breach of military or show cause for his detention, the officer will de- discipline as well as a crime against society, the cline to produce in court the body of the person court-inartial had jurisdiction to try the offender named in the writ, but will make respectful return iind to pronounce the sentence, inasmuch as he was, in writing that the mau is a duly enlisted soldier of by the statute in force in the District of Columbia, the United States, and that the Supreme Court of subject, upon conviction, to imprisonment for that the l’nited States bas decided in such case that a period in the penitentiary; and that the court magistrate or court of a State has not jurisdiction." could, in its discretion, inflict the other penalties."

1062. “A writ of habeas corpus, issuing from a (Exp. Mason, 105 l. S. 196.) United States court or judge will be promptly com In the course of the opinion, Chief Justice Waite plied with. The person alleged to be illegally re who delivered it, said: Whether, after trial by strained of his liberty will be taken before the court the court-martial, he can be again tried in the civil from which the writ has issued, and a return made courts, is a question we need not now consider." setting forth the reasons for his restraint or con Another case on this subject is that of Crook, finement. The oflicer upon whom such a writ is Horner & Co. v. Old Point Comfort Hotel Co., served will at once report the fact to the adjutant- where : circuit court held in 1893, that · The ('ongeneral.”

stitution, art. 1. sec. 8, chap. 11, giving the l'nited It is thus seen that the lines are so drawn limit- States exclusive jurisdiction over all places puring and defining the respective powers of the two chased by the consent of the legislature of the jurisdictions that it is not difficult to locate them. State in which the same shall be for the erection of It may be stated that it is a general principle on forts, arsenals, etc., applies only to land acquired which military officers may safely rely that the by actual purchase, accompanieil by cession of United States will not allow the civil power of any jurisdiction by the State; and where land is acState or of the United States to be so used as to im- quired directly from a State its owner by an act of pair the efficiency of its military service, and, aside cession (as in the case of Fort Monroe) the constifrom numerous judicial decisions to that effect, the tutional provision does not apply, and he United following law is found in the Revised Statutes of States holds the land only as prescribed in the act the l'nited States, section 1237: "No enlisted man oľ cession. shall, during his term of service, be arrested on The general laws of Virginia other than criminal, mesne process, or taken or slischarged in execution which contlict with those of the United States reof any debt, unless it was contracted before his en lating to forrs, and which do not interfere with the listment and amounted to $20.00 when first con military control, discipline and use of Fort Jsonroe tracted."

as a military post, ire in force at Old Point ComAnother leading case on this subject is that of tort. (54 F. 604 ¡C. ('.). 1 Sergeant Mason. In this case the Supreme Court It may be said in passing, that in construing art. of the United States was petitioned for a writ of 4, sec. 3, chap. ? of the Constitution, it was held haleus corpus and certioruri.

by the Supreme ('ourt in l. S. r. Gratiot, 14 Peters, Sergeant Mason, a soldier of the army while on 537, that the word "territory" meant "lands." duty in 1882, at the jail in Washington, maliciously And in art. 1. sec. S chap 17, that “the term attempted to kill a prisoner (Guiteau) who was by purchase 'includes any mode by which the United the authority of the l'nited States there coutined. States may acquire title, whether by original owner

ship, subsequent donation or purchase in the ordi lands upon which public buildings have been nary acceptation of the term.” (Ex parte Hebard, erected will serve to explain the nature of their 4 Dillon, 381.) And that “the term “purchase jurisdiction over such places, and the consistency was to be understood in its legal sense, as embrac- with each other of decisions on the subject by seding any mode of acquiring property other than by cral and State tribunals, and of opinions of the atdescent.” (7, Opinions Attorney-General, 114, 121; torney-general. Winthrop's Digest, opinions of the Judge Advocate When the title is acquired by purchase by conGeneral, ed. 1880, p. 405, notc.)

sent of the legislature of the States the federal jurAmong the more recent cases where this subject isdiction is exclusive of all State authority. This is very fully discussed both bistorically with much follows from the declaration of the Constitution le:rning and judicially with forceful reasoning, I that congress shall bave like authority over such will make the following very full extracts from places as it has over the district which is the seat the case of the Fort Leavenworth R. R. Co., plain- of government, that is, the power of exclusive tiff in error, against Percival G. Lowe, sheriff of legislation in all cases whatsoever.' Broader or the county of Leavenworth (114 U. S. 542), where clearer language could not be used to exclude all it was held :

other authority than that of congress, and that no 1. The legislative power of Congress is exclusive other authority can be exercised over them has been over lands within a State purchased with its consent the uniform opinion of federal and State tribunals by the United States for a constitutional purpose. and of the attorneys-general.

2. Where tlie Cnited States acquires lands within “ The reservation which has usually accoma State in any other way than by purchase with its panied the consent of the States that civil and consent, forts, arsenals or other public buildings criminal process of the State courts may be served erecteil thereon for the use of the general govern- in the places purchased, is not considered as interment, ils instrumentalities for the execution of its fering in any respect with the supremacy of the powers will be free from any such interference and

United States over them, but is admitted to prevent jurisdiction of the State as would destroy or impair them from becoming an asylum for fugitives from their effective use for the purposes designed. But, justice. And congress, by statute passed in 1795, when not used as such instrumentalities, the legis- declared that cessions from the States of the jurislative power of the State over the places acquired diction of places where light-houses, beacons, buoys will be as full and complete as over any other places or public piers were or might be erected, with such within its limits,

reservations, should be deemed sufficient for the 3. The cession of lands by a State to the United support and erection of such structures, and if no States may be upon such conditions as the State such reservation had been made, or in future cesmay see fit to annex not inconsistent with the free sions for those purposes should be omitted, civil and and effective use of such lands for the purposes criminal process issued under the authority of the intended.

State or of the United States might be served and 4. After the admission of the State of Kansas, executed within them. (1 Stat. at L., chap. 40). the United States retained only the rights of an " Thus in l. S. v. Cornell, 2 Mass. 60, it was held ordinary proprietor in the Fort Leavenworth Mili- by Mr. Justice Story that the purchase of land by tary Reservation; except as an instrument for the the United States for public purposes, within the execution of the powers of the general government, limits of a State, did not of itself oust the jurisdicthat part of the tract, which was actualiy used as a tion or sovereignity of the State over the lands purfort or military post was beyond such control of the chased, but that the purchase must be by consent State, by taxation or otherwise, as would defeat of the legislature of the State, and then tbe jurisits use for those purposes. The clause of the act | diction of the United States under the Constitution of the Legislature of Kansas of February 23d, became exclusive. In that case the defendant 1875, to cede jurisdiction over said reservation to was indicted for murder committed in Fort the United States, saving to the State the right to | Adams, in Newport Harbor, Rhode Island. The tax railroad, bridge and other corporations, their place had been purchased by the United States franchises and property on said reservation is valid with the consent of the State, to which was added and a tax upon a railroad paid to the State cannot the reservation mentioned, as to the service of civil be recovered back.

and criminal process within it. The main questions Decided May 1, 1885.

presented for decision were, whether the sole and Mr. Justice Field, in delivering the opinion, used exclusive jurisdiction over the place vested in the the following language:

United States without a formal act of cession, and “This brief statement as to the different modes whether the reservation as to service of process in which the United States have acquired title to I made the jurisdiction concurrent with that of the


State. The first question was answered, as above, erecting arsenals upon them. That was a case of a that the purchase by consent gave the exclusive juris- prosecution against the defendant for selling spirdiction, and as to the second question, the court ituous liquors

the land without a license, said: “In its terms it certainly does not contain any contrary to a statute of the State. But the Court reservation of concurrent jurisdiction or legislation. held that the law had no operation within the It provides only that civil and criminal process lands mentioned. “ The territory

" it said "on issued under anthority of the State, which must, of which the offense charged is agreed to have course, be for acts done within, and cognizable by been committed is the terrritory of the United the State, may be executed within the ceded lands, States over which the Congress have exclusive nut withstanding the cession. Not a word is said

power of legislation." It added that, “The assent from which we can infer that it was intended that of the commonwealth to the purchase of this territhe State shoul«i bave a right to punish for acts tory by the United States has this condition annexed done within the ceded lands. The whole apparent to it, that the civil sud criminal process might be object is answered by considering the clause as served therein by the officers of the commonwealth. meant to prevent these lands from becoming a sanc This condition was made with a view to prevent the tuary for fugitives from justice for acts done within territory from becoming a sanctuary for debtors and the acknowledged jurisdiction of the State. Now, criminals; and from the subsequent issent of the there is nothing incompatible with the exclusive United States to the said condition, evidenced by sovereignty or jurisdiction of the State that it their making the purchase, it results that the should permit another State in such cases to execute officers of the commonwealth in executing such proits process within its limits. And a cession of ex cess, act under the allthority of the United States. clusive jurisdiction may well be made with a reser No offenses cominitred within that territory are vation of a right of this nature, which then oper- committed against the laws of the commonwealth, ates only as a condition annexed to the cession, and nor can such offenses be punished by the courts of as an agreement of the new sovereign to permit its the commonwealth, unless the Congress of the free exercise as quond hor his own process. This is United States should give to the said courts jurisin the light in which clauses of this nature (which | diction increuf. are very frequent in grants made by the States to In Mitchell v. Tibbets before the same court, the l’nited States) have been received by this court years afterward 117 Pick, 298), it was held that a op various occasions on which the subject has been vessel employed in transporting stone from Maine heretofore brought before it for consideration, and to the navy yaris in Charlestown, Mass., it place it is the same light in which it has also been re purchased by the l'uited States, with the consent ceived by a very learned State court. In our judge of the State was not employed in transporting stone ment it comports entirely with the apparent inten- within the commonwealth, iend therefore committed tion of the parties, and gives effect to acts which no offense in disregarding it statute making certain miglit otherwise, perhaps, be construed entirely requirements of vessels thus employed. The court nugatory. For it may well be doubted whether sid, that to bring a vessel within the description of congress is, by the terms of the Constitution, it the statute, she must be employed in landing stone at, liberty to purchase lands for forts, dock yards, etc., or taking stone from, some place in the commonwith the consent of the State Legislature, where wealth, and that the law of Massachusetts did not such consent is so qualities that it will not justily extend to and operate within the territory (edel, the exclusive legislation of congress there. It may adopting tile principle of its previous decision in S well be doubted if such consent be not utterly vojil. Massachusetts. In March 1811, the House of RepreLZ rex mujis vulenet quum perent, we are bound to give sentatives of Massachusetts requested of the Juisthe present act al dill'erent construction if it may tices of the Supreme Judicial (out of that State, reasonably be done; and we have not the least liesi- their opinion whether persons residing on lands in tation in declaring that the true interpretation of that State, purchased by or vedlel to the United the present proviso leaves the sole and exclusive States for nars yards, arsenals, clock varils, forts, jurisdiction of Fort Adams in the l'nited States, light-house's, hospitals and armories were entitled

"The case referred to in which the sobject wils to the benefits of the State (common schools for their considered by a learned State ('ourt is that of Com- children in the towns where such lands were located, monwealth v. Clary, S Mass :2. Therithe Supreme ind the justices replicil: " where the general conCourt of Massachusetts held that the courts of the sont of the commonwealth is given to the purchase commonwealth could not take cognizance of of territory by the United States for forts and lock offenses committed upon lands in the town of yards, and where there is no other condition or Springlield purchased with the consent of the com reservation in the act grunting such consent, but monwealth by the l’nited States for the purpose of that of it concurrent jurisdiction of the State for

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