the most compendious and the most concise, and is substantially copied
in the Second and Third Amendments of the Federal Constitution. Modern
legislation on the subject has found little to improve, although, with
the ignorance of constitutional history too often found in modern
statutes, we do find State laws which recognize martial law as a
really existent domain of English and American jurisprudence. As our
greatest jurists have often enough declared: "martial law" is nothing
but the will of the commanding officer, the negation of all law, which
exists when the courts do not sit and the writ of habeas corpus does
not run. Even in these imperial days, I detect no tendency in the
legislation of the States, or even of the Federal government in North
America, to infringe upon these great principles of freedom. On the
contrary, many State constitutions, as well as an act of Congress,
declare that the writ of habeas corpus can never be suspended by
the executive, but only by the people's representatives in the
legislature. The prejudice against standing armies does not seem to be
as strong, in that ours has recently been quadrupled in size; but this
is probably no more than proportionate to our national expansion. Many
of the States in this time of increasing civic disorder have had to
give their attention to the suppression of mobs, and correspondingly
we very generally find new complete codes governing the militia. Thus
statutes are frequent exempting a private soldier from prosecution for
murder when he fires under the orders of his commanding officer; and
the honest judgment of the commanding officer is made a defence
for all acts of his troops in attacking mobs, even to the point of
fatalities resulting. Counties or cities are very generally made
liable for damage to property done by mobs, and in some States for
damage to life done by lynchers; the widow and children of the person
lynched may recover damages. In Kansas, by a statute of 1900, it is
made a misdemeanor for a bystander to refuse to assist a sheriff
in quelling a riotous disorder. Most significant, perhaps, of this
militia legislation is that concerning its relation to the labor
unions, and more significant still, the too apparent desire of labor
unions to prevent their members from serving in the militia. Thus,
New York and other States have already found it necessary to enact
statutes prohibiting any discrimination against persons because they
serve in t