that persons sentenced, should, in all cases, be confined in the penitentiary at Moundsville.

Acting under such proclamations and rules for its guidance such Military Commission, during the various periods of martial law, arrested, tried, convicted and sentenced probably more than two hundred citizens of this State, the exact number not being at hand, without either presentment, indictment or jury, its findings and sentences becoming effective and final when approved by the Governor. Many were so approved.

As illustrative cases may be cited: L. A. Mays, charged with violating section 19 of chapter 15 H of the Code of 1909, by preventing by threats or intimidation persons from working in any mine, the statutory penalty for which is a fine of not less than $50.00 or more than $500.00, or (not and) confinement in the county jail not less than ten nor more than ninety days, and also the case of S. F. Nance, charged with violating section 4317 of the Code. by obstructing an officer in the discharge of his duty, the statutory penalty for which is a fine of not less than $50.00 nor more than $500.00, and at the discretion of the court, imprisonment not exceeding one year, the place of imprisonment not being specifically designated in the section.

The offenses charged against both Mays and Nance were committed before the second proclamation and after the removal of the first, in other words, during a time of admitted peace. Mays was sentenced by the Commission to two years confinement in the penitentiary, and Nance to five, and such sentences were approved by the Governor.

Adhering to the purpose and attempting to confine this paper to the consideration of the State Constitutional provisions only, I merely suggest the quaere: If the proclamation and rules. for the "guidance" of the Commission were in all other respects legal and valid, and in all respects "laws" of the State, what as to the validty of such er post facto provisions of the rules and the sentences which transformed a statutory misdemeanor at the time of its commission into a felony at the date of sentence, with reference to the Federal inhibition against ex post facto laws? It being remembered that the Supreme Court of the United States has on at least two occasions felt itself constrained to discharge, absolutely unwhipped of justice, two convicted murderers, sentenced to death by state courts, in the records of whose trials the Supreme Court declared there was absolutely no error, for the sole reason that while at the time of the commission of their respective crimes the State statute provided the penalty should be death, that thereafter and before sentence it was so changed as to provide for solitary confinement until execution, and also conferred upon the warden of the penitentiary the power to fix the exact day and hour of execution within one week, which

week was fixed by the court pronouncing sentence, and repealed the former law.

Ex Parte Medley 134 U. S. 160 (L. Ed. Vol. 33, p. 842). Ex Parte Savage 134 U. S. 176 (L. Ed. Vol. 33, p. 842). And while the Supreme Court has uniformly held that the provision of the Federal Constitution against ex post facto laws is directed against legislative acts only, as distinguished from judicial acts, yet it has held with equal uniformity that it reaches every form in which legislative power of a state is exerted, whether it be a constitution, a constitutional amendment, a law of the legislature, a by-law or ordinance of a municipality, or a regulation or order or some other instrumentality of the state.

Ross v. Oregon (decided January 27, 1913).

West Virginia, in common with all of the States of the American Union, also has a like inhibition in her Constitution against ex post facto laws. (s. 4, Art. III).

The argument for the power of the Governor to proclaim martial law, create a Military Commission, try and sentence offenders not in the military service of the State, and award such punishment as he, the Governor, should deem fit and proper in cach particular case, upon the sentence or recommendation of such Commission, in its last analysis must rest, and was rested, upon two grounds only:-

First: That such power is incidentally granted by the Constitutional provision (section 12 of Article 7), which provides "The Governor shall be commander-in-chief of the military forces of the States (except when they shall be called into the service of the United States) and may call out the same to execute the laws, suppress insurrection, and repel invasion."

and

(section 5, Art. 7) "The chief executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed"

Or, Second: That the power to suspend all law, constitutional or statutory, in times of war, invasion or rebellion within its domain is an inherent and necessary attribute of all sovereign states, not yielded up or restricted by any express provisions of the Constitution, and one not to be presumed as impliedly restricted by any necessary presumptions flowing from express provisions. And that the necessity for exercising such power in American States is determinable by the Governor, the substitution of his will in lieu of existing laws is exercisable by the Governor, and in neither event is the question of the propriety or necessity of such exercise, or of the will substituted in lieu of other laws, reviewable in any manner by the Courts.

As to the first ground assigned, namely, that the Constitution by providing that the Governor "shall take care that the laws

1

be faithfully executed" and authorizing him to call out the military to execute the laws, suppress insurrection, and repel invasion" it would seem manifestly obvious that such provisions contemplate the execution of the Constitution and constitutional law of the State only, not the suspension of or substitution for such laws of arbitrary rules promulgated by the commander-in-chief or any other person or department of the State Government, under excuse of "executing" them; and contemplated the suppression of insurrection against such laws, and the repelling invasion of the domain of the State in violation of such laws and rights conferred or exisiting thereunder.

What laws could the Governor by possibility be charged to execute other than the provisions of the same Constitution which created and defined the powers of his office, and the laws passed and enacted in conformity with its provisions? Except to lawfully enforce or lawfully restore such laws of this State the Governor would never have been vested with any of the extraordinary, but express and carefully defined, powers conferred upon him as chief executive of the State and of its laws.

As to the second ground, of implied power and inherent and sovereign necessity, much can be said and much has been said. A number of similar, or somewhat similar, cases have arisen in various States of the American Union, and have caused several of the courts, State and Federal, to examine and consider the rights of parties and property in times of war, rebellion and insurrection as dependent upon the provisions of the State and Federal Constitutions invoked therein as conferring, defining or restricting such an implied war power. It is hardly necessary to state, however, that the value and authority of any such cases as aids to the solution of the law of this State, if any, must depend upon the similarity or dissimilarity of the constitutional provisions presented in them to those of this State. Their proper scope is limited to aiding in deciding why the provisions of our own Constitution were inserted, and what such provisions, in the light of the reason for their insertion, really mean.

West Virginia's present Constitution, adopted in 1872, was framed by as able a convention of men as that of probably any State in the Union. Many of them had held and more thereafter held, high place in the affairs of the State and Nation. Personally I am not one who joins in the recently apparently popular movement of clamoring for the new and untried, and deprecating the ability, patriotism or learning of the framers of our Constitution, or seeking to dismiss contemptuously as no longer adequate or adapted to present conditions most of its fundamental principles and ground work. Fundamental principles of government are slow in evolution; some times slower still in being comprehended and understood; but the principles themselves if once

sound are unchanging and will remain sound, though surrounding conditions and men may change, industries may develop and multiply, and the outward affairs of the State expand and change alinost beyond recognition. We should remember that if wisdom did not die with the ancient, neither was it born with the modern law makers and would-be law makers.

Practically all of the members of that convention were native sons of the territory comprising the new State. They were familiar with its genesis, having assisted at its birth while the storm and smoke of battle-fields still rolled over its hills and valleys, amid the throes of an entire nation. They were familiar with the causes which gave it birth familiar with the grievances of its inhabitants against the mother State;-familiar with the evils and oppressions which preceded and which accompanied and followed the Civil War; familiar with the evils and oppressions which followed it during the dark and, in many instances, shameful days of reconstruction in this State and throughout the South-Military districts, Courts Martial and Military Commissions, with all of their incidents, and with all of the arguments for their maintenance to suppress war, under the plea of necessity, and other pleas, were all matters of their most intimate knowledge, derived from bitter and from recent schooling. With the written history of our country, and with the recently enacted history of their own sections, these men were thoroughly familiar, as students, personal observers and personal actors and participants. And I submit that no man even casually acquainted with the Constitution which they prepared can doubt that among them were many gifted to an unusual degree with the ability to express in clearly written language provisions conferring such powers and imposing such restrictions, limitations and prohibitions upon their exercise, as they deemed proper, and providing other safeguards around rights clearly understood and which they were intelligently determined to protect and enforce or, in some instances, to create.

A few specific instances of one of the primary, if not the principal, evil with which this Convention was acquainted, and which it proposed and attempted to prevent in the future, may be briefly given. Their historical accuracy is easily demonstrable. and in fact probably needs no proof before this body.

In Hampshire, Greenbrier, and other of the border counties of what is now West Virginia, during the late Civil War the territory was alternately overswept by the armed forces of the Federal and Confederate armies. The civil courts were closed, literally and not figuratively. As the contending forces, upon the actual theater of war, alternately possessed this territory, they arrested, seized and tried large numbers, certainly hundreds, of the citizens of these counties for offenses against the sovereignty

represented by them respectively, such as disloyalty, aiding and abetting the enemy, furnishing supplies and assistance to the enemy or their sympathizers, and in fact for almost every conceivable offense, statutory or arbitrarily defined, against either the civil law or the authority of the sovereignty represented by the military. As a result Camp Chase, Johnson's Island, Fortress Monroe, Libby Prison and other places of confinement were alternately populated by hundreds of our citizens, condemned by courts martial or'military commissions, without indictment, trial by jury or counsel. Without discussing the necessity or the propriety of such action in such circumstances, I desire only to point out that they had been of recent and most frequent occurrence, which fact was perfectly well known to the Convention, and such sentences had been pronounced in times of actual war and within the theater of warfare, and the fact remained that this method of trial of civilians, not combatants, had excited the deepest and most intense feeling among the citizens of the counties where such prisoners had resided and lived. They felt. rightly or wrongly, that the Constitution of the United States had been violated, and they had been deprived as their right to a trial, as that term had been used and understood since Magna Charta.

For a still more specific State incident may be cited the execution of David S. Creigh, of Greenbrier County, late in 1864. Mr. Creigh was one of the best known, most highly esteemed and personally popular citizens of that County. He was advanced in years and had taken no personal part in the war. Greenbrier County was the theater of active warfare, and Lewisburg its county seat, and the County at large had been alternately in the possession of the Confederacy and of the Union. Its courts were closed. In November, 1864, the Federal forces under Generals Crook and Hunter were occupying that County, while the forces of General Averill were but a short distance away between Greenbrier and Staunton, and the Confederate forces under General Echols had been temporarily driven up the valley. A camp follower of Genera! Crook, not an enrolled man, as it developed, assaulted Mr. Creigh in his own home, where such follower was discovered pilfering and robbing, and after he had insulted the members of the family and fired at Mr. Creigh, in the ensuing struggle he was slain by Mr. Creigh. For this alleged offense Mr. Creigh was subsequently arrested by troops under General Crook, was tried by a military commission and shortly thereafter was executed. It is difficult for one not acquainted with the history of that section to conceive the indignation which resulted from this so-called trial and execution. So deep was the resentment over the act and over the trial by a military commission, under which alone could an execution con