In this case the defendant is indicted for murder, alleged in the bill to have been committed in the district of Kansas, at a place under the sole and exclusive jurisdiction of the United States of America; to wit. at Fort Harker, on land occupied by the United States for a military post, and purposes connected therewith. To this indictment, the defendant pleads to the jurisdiction of the court, alleging that Fort Harker was first established as a military post in the year 1863, under the authority of the war department; that no purchase of the land on which it was established had ever been made by the government of the United States with the assent of the state of Kansas; and that the consent of that state had never been given in any other mode to the exercise by the federal government of an exclusive jurisdiction over the land included within the post. To this plea there is a demurrer, which we are now to decide.
The state of Kansas was admitted into the
It needs no argument to show that the jurisdiction of the crime of murder, or of any -other offence, committed within the limits of her territory, must belong to the state of Kansas, except in some special cases, which, by a positive rule of law, are constituted exceptions to the general principle. In this case the exception is claimed to rest on that provision of the federal constitution which empowers congress “to exercise exclusive legislation in all eases whatsoever over such district (not exceeding ten miles square) as may, by session of particular states and the acceptance of congress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and oth•er needful buildings.”
It is very obvious that the situs of Fort Harker does not come within the literal sense -of this provision: for it was not purchased by the United States at all, and no consent was •ever given by the state legislature to its use as a fort. As the United States was already the owner of the land before the establishment of the fort upon it, and before Kansas was organized into a territory or admitted as a state, it was impossible to comply with these literal terms of the constitution, so far as the purchase was concerned. But as no purchase could be made, so none was necessary. The only object of a purchase, namely, the acquisition of a title, was already accomplished. The government of the United States, when it admitted Kansas into the Union upon the same footing as the original states, retained the legal title to all the lands which it then owned in the state of Kansas. So far as general purposes of government were concerned, however, with certain reservations and exceptions, it parted with jurisdiction over it.
The first exception reserved the lands of Indian tribes which had treaties exempting them from state jurisdiction; the second, the power to tax the lands of the United States and of the Indians. It was competent to the federal government, and it would have been appropriate at that time, to have also excepted out of this grant of jurisdiction, places for forts, arsenals, &e., if such had been the policy of congress. But it was not done. So far as the consent of Kansas to the exercise of this exclusive jurisdiction by congress is concerned, that state stands on the same footing as the original thirteen.
The question then is, when congress purchases the fee simple of a portion of territory included within one of the original states, for the purpose of erecting a fort thereon, what kind of consent is necessary to be obtained from the state legislature in order to vest jurisdiction in the federal government? It is not material now to inquire whether the United States could erect and occupy a fort without the consent of the legislature. The language is, that congress shall exercise exclusive legislation over all places purchased with tEat consent. But whether the constitution requires that consent as a condition precedent to the establishment and use of the place as a fort, may well be doubted. It does not seem probable that the framers of the constitution, who conferred on congress full powers of making war, raising armies, and suppressing insurrections, and also declared that the federal government was established for the express purpose of providing for the common defence, would have left its power of erecting forts, so important to the execution of that purpose, subject to the volition of state legislatures. However this may be, it is clear that in order to withdraw from a state a jurisdiction which it had possessed and exercised, and confer it on the general government, the consent of the former was made a prerequisite. This is the material point aimed at by the provision of the constitution.
All the important uses of a fort, arsenal, or magazine could be secured' without the exercise of exclusive legislation within their walls; and there was manifest propriety in requiring the assent of the state to the exercise of this important and delicate power, which of right belonged to the local authority, and which could be needed by or useful to the general government only in special cases. This jurisdiction having been vested in the state of Kansas by the act admitting her into the Union, and never divested, it cannot now belong to the United States. The power provid
[These views find support in the following adjudged cases: People v. Godfrey, 17 Johns. 225; Com. v. Clary, 8 Mass. 75; U. S. v. Bereau, 3 Wheat. [16 U. S.] 388; Clay v. State, 4 Kan. 40; Dunn v. Games [Case No. 4,176]; Story, Const. §§ 1224-1227; 1 Kent, Comm. 482.]
The demurrer to the defendant’s plea to jurisdiction is overruled.
[From 1 Kan. 606.]