HE commander of a military reservation in his relation to the civil authority is bound to perform certain duties which naturally follow from his character as a representative of the power and dignity of the United States government. Yet in the fulfilment of the obligations arising from these duties he must be guided constantly by the precept that military authority is subordinate to civil when both are found on common ground, and that the national and state sovereignties are coexistent and must be so considered in certain cases, each in its proper sphere.

To give a clear and concise statement of the rules of law governing the relation of military authority to civil, in times of peace, in so far as the duties of a commander of a military post are involved, and to make plain the proper manner of maintaining the ascendancy of the sovereignty of the United States when appropriate to do so, is the purpose of this thesis. The subject was suggested to the writer as one of merit by his study of Constitutional Law.

The event of friction between the two sovereignties, national and state, is made possible only when one encroaches upon, or attempts to encroach upon, the legitimate jurisdiction belonging exclusively

to the other. Therefore a clear under

standing of the scope of these jurisdic

tions at once defines the limits of the powers of each, and points out unmistakably the rights and duties of each authority with relation to the other.

Arrest on a Military Reservation. Soldiers at their enlistment and officers upon the acceptance of their commissions

immediately change their legal status; they add to their liability, for then they become amenable to military laws while still retaining their amenability to the civil laws,-Federal, state, and municipal. Naturally it follows, then, that a man in the military service sometimes finds that the Federal, state, or municipal laws have been violated by him, outside the military reservation. He learns that a warrant is to be served on him by the civil authorities.

The post commander now discovers these circumstances. He will not permit that the sovereignty of the United States, which it is his sworn duty to guard jealously, be infringed upon, and still he is desirous of not appearing to shield the accused from just punishment for his deed.

If the culprit is still at liberty the post commander is required "to use the utmost endeavor to deliver the accused over to the civil authorities and to aid the officers of justice in apprehending and securing him. The commanding officer, before surrendering the party, is entitled to require that the application shall be sufficiently specific to identify the accused, and to show that he is charged with a particular crime or offense, which is within the class described in the article." (59th Article of War.) It has been held, further, that without a strict compliance with these requirements the commanding officer cannot properly surrender, nor the civil authorities arrest within a military reservation, an accused officer or soldier.

In the Digest of Opinions, J. A. G., page 35, it is said that "where it is doubtful whether the application is made in good faith and in the interests of law and justice, the commander may demand that the application be especially explicit and be sworn to; and the preferable and, in

deed, only satisfactory course will be to require the production, if practicable, of a due and formal warrant or writ for the arrest of the party accused."

It is immaterial to the case whether the actual commission of the crime occurred before or after the accused entered the military service. It is obvious that if the contrary were true the Army would in a short time become a refuge for criminals at large. For if people knew that those in the military service were exempt from punishment by civil authority for crimes against the Federal, state, or municipal governments they could commit a crime and then immediately join the Army and be exempt from punishment therefor by the civil authorities, and also exempt from punishment by the military, for the crime was not committed during their service.

The proper and legitimate manner in which to effect the arrest by the civil authorities of a fugitive from justice serving in the military service of the United States is clearly pointed out in the case of Ex parte McRoberts, in the sixteenth Iowa Report, page 600. There the court laid down the rule that "any state officer has not the right to go to a company or regiment, or to go within the military lines, and by virtue of a state process to arrest any officer or soldier within such military control for an offense committed even outside of a military reservation. But it is the duty of such civil officer to stop at the boundary line between the two jurisdictions, and there demand of the military officers the delivery of the accused, if in their jurisdiction." It has been seen that it is the duty of the military officers to surrender the accused under conditions as enumerated in the 59th Article of War, hereinbefore quoted.

Now let us look at the question from another standpoint. Suppose that the accused is under arrest, or that the military jurisdiction has already duly attached with a view to trial. Now let us refer again to the Digest of Opinions, J. A. G., page 37, where it is stated that "the prisoner may be surrendered or not, as the proper authority may determine. A soldier under a sentence of confinement imposed by court martial cannot,

in general, properly be surrendered." The proper authority named here is supposedly the next higher in rank, who may also refer the question to his superior.

The above statement embraces only those cases in which the crime was committed without the military reservation and consisted of violence against the person, as manslaughter, robbery, assault and battery, or affected a person in his property, as arson, burglary, or malicious mischief. (Winthrop, Military Law, p. 1075.)

In the case of where an officer or soldier is accused as indicated in the 59th Article of War, he should not be permitted to deliver himself up to the civil authorities or to appear in the civil court, even though he is willing or even desirous of doing so. He should be required to await the formal application of the civil officers.

The Articles of War were enacted by Congress and have the force and authority of statute law, being ordained in the exercise of the constitutional power of Congress to make the rules for the government and regulation of the land and naval forces. (Black on Constitutional Law, page 101.) From this it would seem to follow that this duty of surrender in certain cases corresponds to an analogous duty on the part of the civil officials.

Here another quotation from Winthrop on Military Law (page 1079) is competent. He says that "it follows that when the arrest of an officer or soldier at a military post is made without a previous demand, or after a demand not duly made in accordance with the 59th Article, and therefore not acceded to, the law is violated, the act is a trespass, and it is the right, as well as the duty, of the commander, to retake the prisoner from the custody of the civil officials and remand him to his former status. In so doing, the commander is entitled and properly required to use such military force as may be suitable to effect such purpose in an orderly manner; but before resorting to this means he will properly call upon the civil authorities to return the prisoner, allowing them a reasonable time for the purpose."

It is interesting to note at this place

that where the civil authorities do not presently apply for the accused under the 59th Article, it is the duty of the military authorities to proceed to exercise their jurisdiction and forthwith try the accused by military law. Ex parte Mason, 105 U. S. 699, 26 L. ed. 1214.

As a matter of comity between jurisdictions, the commanding officer will aid the service of a subpoena out of a civil court upon a member of the military service. The 59th Article of War does not embrace subpoena, however.

Service of Civil and Criminal Process.

In order to fully understand and grasp this division of the subject, it is necessary first to ascertain what the term "process' means and also what is included thereunder. Black's Law Dictionary may be quoted on this point as follows:

"The word 'process' is, in commonlaw practice, frequently applied to the writ of summons, which is the instrument now in use for commencing personal actions. But in its more comprehensive significance, it includes not only the writ of summons, but all writs which may be issued during the progress of an action. Those writs which are used to carry the judgments of the courts into effect and which are termed writs of execution are also commonly denominated 'final process." "

From this it follows that civil and criminal process includes warrants, subpœnas, and in fact all the customary writs with the one exception of the writ of habeas corpus.

Where exclusive jurisdiction over the military reservation is vested in the United States, either by its having expressly reserved the same upon the admission of the state or by means of the subsequent cession of its own jurisdiction by the state, the persons stationed upon the premises become isolated as respects their civil relations. They are not subject to the service of the civil or criminal process of the local courts except-and here is an important exception-in so far as the right to execute the same may legally have been reserved to the state ceding the jurisdiction. This reservation is usually in the following form:

"Except the service upon such sites of

all civil and criminal process of the courts of this state."

This would seem to be the logical place for the discussion of the service of the writ of habeas corpus, for all it is not included in the term "civil and criminal process."

In Tarble's Case, 13 Wall. 397, 20 L. ed. 597, the Supreme Court of the United States in 1871 adjudged that state courts have no power whatever to discharge a person on a writ of habeas corpus issuing out of such state court, when such person be held under authority of the United States by a military officer of that government. Should any state or municipal tribunal issue the writ in such a case, while the officer in charge of the petitioner and upon whom service is made is not, strictly, required to make any return to the same, he will, yet, as a matter of comity, always properly do so, so far as to advise the court that he holds petitioner by the authority of the United States, as an enlisted soldier or military convict. Should the state authorities attempt to take the soldier by force, they will be prevented by the commanding officer using only such military force as is necessary for the purpose. The writ of habeas corpus cannot issue under the reserving clause noted above, because the jurisdiction of the United States has attached, and hence state courts lack jurisdiction. However, if the officer commanding be served with a writ of habeas corpus, issuing from a United States court, he will make full return to same and obey it strictly. (U. S. Rev. Stat. §§ 751, 752, Comp. Stat. 1913, §§ 1279, 1280.)

On another question of jurisdiction, which is of interest here, the case of Barrett v. Hopkins, 2 McCrary, 129, 7 Fed. 312, may be cited as deciding the point. There it was held that the jurisdiction of a general military court-martial may always be inquired into by civil courts, upon the application of any party aggrieved by its judgment, and if such a court exceeds its authority and undertakes to try and punish a person not within its jurisdiction, its judgment is void, and may be so declared by any court having jurisdiction of the proper parties and subjectmatter. Where a soldier in the Army of the United States was arrested for a

crime, and his term of enlistment expired before his trial and conviction by the court-martial, the jurisdiction of the court was retained for all purposes of the trial, judgment, and execution, it having once attached. (Citing Dynes v. Hoover, 20 How. 82, 15 L. ed. 844.)

Reserving Clauses in Acts of Cession of

Jurisdiction by a State.

Now we come to an examination of these reserving clauses, heretofore mentioned.

The Constitution of the United States, article I. § 8, provides that Congress shall have power "to exercise exclusive legislation in all cases whatsoever over such district as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislation of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings."

Where the land is acquired for military posts in other ways than by purchase with the consent of the state legislature, as by cession by the state, the terms of the act of cession usually clearly define the limits and extent of the jurisdiction. ceded. At this point a consideration of the case of Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995, may be instructive. In that case the railroad running in a military reservation resists state taxation. Now formerly the state of Kansas had ceded jurisdiction to the reservation of Fort Leavenworth, reserving the right expressly to serve civil or criminal process thereon and to tax private property therein. It was held that the railroad was liable to state taxation. The court said: "A state may for such purpose cede to the United States exclusive jurisdiction over a tract of land within its limits in a manner not provided for in the Constitution of the United States. If a state thus ceding to the United States exclusive jurisdiction over a tract within its limits reserves to itself the right to tax private property therein, and if the United States does not dissent, their ac

ceptance of the grant, with the reservation, will be presumed."

If there is no reservation in the ceding act of the state, criminal acts committed within the boundaries of the post are triable only in United States courts, since the territory has become exclusively United States territory. After a state has parted with its political jurisdiction over a given tract of land, it cannot be said that acts done thereon are against the peace and dignity of the state or are violations of its laws. Black, Const. Law, p. 227.

In the case of Re Ladd, 74 Fed. 31, it was held that "while after an act of legislature ceding to the United States the land used as a military reservation, the jurisdiction of the state over a tract of municipal laws of the state, governing property and property rights, continue in force in the ceded territory except so far as in conflict with the laws and regulations of the United States applying thereto, the criminal laws of the state cease to be of force within the ceded territory. Hence laws regulating the sale of intoxicating liquors cease to be operative both as in conflict with the United States law, authorizing a canteen in the post, and as penal in character."

An interesting rule may be here noted, that if the United States has purchased. real property in a state, and the state legislature has not recognized the presence of the sovereignty of the United States, then the latter is an ordinary proprietor and the land is state erritory and hence as such is amenable to all state laws.

Exclusive Jurisdiction in Territories.

We have been examining heretofore the peculiar status of military officers and enlisted men in a locality within the state, exclusive jurisdiction over which has been vested in the United States. It is obvious that such a status cannot exist where the military post or reservation is situate in a territory, for a territory is not a sovereignty. (Talbott v. Silver Bow County, 139 U. S. 446, 35 L. ed. 212, 11 Sup. Ct. Rep. 594.) A territory is a political organization wholly dependent upon Congress and subject to its absolute supervision and control. (Church of Jesus Christ of L. D. S. v. United

States, 136 U. S. 43, 34 L. ed. 491, 10 Sup. Ct. Rep. 792.)

Winthrop, on page 1406, says that "as a general rule, in the absence of any provision in the organizing act or other United States statute exempting officers and soldiers from the jurisdiction of the authority of the local courts and officials (territorial) they will be amenable thereto in the same manner and to the same extent as are the civilian inhabitants, where such amenability may not interfere with the due performance of their military function."

A further result of this rule is that trial by a Federal civil court is a bar to trial by court-martial in so far as the military and civil courts have concurrent jurisdiction, as in larceny, for instance. But if a purely military offense is embraced by the criminal offense, a trial of the former may be had by the military court. For example, if an enlisted man strike an officer, he may be tried by a civil court for assault and battery and by a court-martial for the breach of military discipline, provided he was found guilty in the civil court. The contrary is true if he prove himself innocent in the civil

court.

The service of process issuing out of the courts of the territories on a military reservation therein is restricted only by specific local or Federal laws, and by the requirement that the civil officer must apply to the commanding officer before attempting to serve his warrant or other writ. It may be observed here that the civil officer is holding under the authority of the United States in all cases, and is on the territory of that sovereignty when on a military reservation.

Commanding Officer Entitled to Serv

ices of Soldiers.

Municipal authorities have the right to arrest and imprison a soldier off the military reservation for breaches of the peace if such arrest and imprisonment do not deprive his commanding officer of his services. If such be the case, then the civil authority must release the soldier to the commanding officer, for he is entitled to the unqualified services of all the men in his command. In the noted case of Ex parte Schlaffer, 154 Fed. 921, a sol

dier was arrested and confined by the city police in the course of a raid upon the soldiers, planned by the police. An excessive fine was imposed by the city court, upon default in payment of which an alternative of a long term of imprisonment was given. The Federal court trying the appeal said:

"While an enlisted man in time of peace may be subjected to arrest and imprisonment for violation of a municipal ordinance the same as a civilian, yet where any punishment is sought to be inflicted which will interfere with the duties which he owes to the United States, the utmost good faith is required. from civil authorities, and any unfair or unjust discrimination against the offender because he is a soldier, or departure from the strict requirements of the law, or any cruel or unusual punishment, may be inquired into by his commanding officer in proceedings in the Federal courts."

"The enlisted men are within the state and the city, not in accordance with their own will, but in accordance with the orders of their superior officers to whom they are answerable, and, although temporarily off duty for a short time, they are constantly subject to the terms of their enlistment and to the orders of their officers. Their position and the requirements of their constant duty demand in behalf of the national government from the municipal authorities such a recognition of its rights as would accomplish complish a preservation of the peace and the observance of the city ordinances as would in no way affect their duties as soldiers."

In that case the commanding officer was granted a writ of habeas corpus.

Civil Actions and the State Courts.

Thus far the discussion has been in reference to criminal acts as distinguished from civil actions. Now the latter is to be taken up and considered.

A civil action is one brought to recover some civil right or to obtain redress for some wrong not being a crime or misdemeanor. 1 Burrill's Law Dict. 294.

A civil action for redress for a wrong committed on a reservation may be tried by a state court as well as by a Federal