“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

Similar declarations are found in the Declaration of Independence the same year, and the Massachusetts Bill of Rights four years later; but the Virginia definition, being the work of Thomas Jefferson, is both 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 the militia; prohibiting their employers from discharging them by reason of their necessary absence on such service, and forbidding the labor unions from in any way preventing them, or passing by-laws against their serving in the militia.  Such by-laws are, however, unlawful under the common law.