« PrejšnjaNaprej »
be left, therefore, to the sound discretion of Congress, ac ing with a wise regard to the public interests and the convenience of military operations. If Congress had no authority to march the militia beyond the territorial boundaries of a particular State, either to execute the laws, or to suppress insurrections, or to repel invasions, the power over the militia might be perfectly nugatory for all the purposes of common safety, or common defence. Suppose there should be an invasion of Rhode Island by a public enemy, if the militia of the neighboring States could not be ordered into that State for military duty, it is obvious, that the militia would be utterly worthless for the general protection of the Union. Suppose a battle to be fought on the confines of two States, and the militia to stop at the boundary, and thus to lose all the advantages of mutual cooperation, and even of a victory almost achieved ? In times of insurrection or invasion, it cannot admit of a reasonable doubt, that it would be both natural and proper, that the militia of the neighboring States should be marched into the suffering State to repel the invaders, or to suppress the insurgents. But it would rarely occur, if ever, that the militia of any one State would be required to march to a great distance from their homes, or for a long period of service, since it would be at once the most inconvenient, as well as the most expensive force, which could be employed upon distant expeditions. And yet an occasion might occur, when even such a service might be indispensable to the public safety ; as it was in the late war with Great Britain, (1814,) when the militia of Tennessee and Kentucky were required to go to New Orleans; and there saved the country from the dreadful calamity of having the mouth of the Mississippi in the hands
of the enemy:
$ 195. The next power of Congress is, “ to provide for organizing, arming, and disciplining the militia, and for governing such part of them, as may be employed in the service of the United States ; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress." And here, again, we have
another instance of the distribution of
between the National and State Governments, over the same subject matter. Unless there is uniformity in the organiza tion, arming, and disciplining of the militia, there can be little chance of any energy, or harmony of action, between the corps of militia of different States, when called into the public service. Uniformity can alone be prescribed by the General Government; and the power is accordingly given to it. On the other hand, as a complete control of the militia by the General Government would deprive the States of their natural means of military defence, even upon the most urgent occasions, and would leave them absolutely dependent upon the General Government,
of the latter is limited to a few cases ; and the former retain the appointment of all the officers, and also the authority to train the militia, according to the discipline prescribed by Congress. With these limitations, the authority of Congress would seem to be above all reasonable objections.
§ 196. Several questions, of great practical importance, have arisen under these clauses of the Constitution respecting the power of the National Government over the militia, which deserve mention in this place. Congress are authorized to provide for calling forth the militia," in the particular exigencies above stated.
And accordingly, by an act passed in 1795, under President Washington's administration, authority was given to the President to call forth the militia in case any of those exigencies occurred. The delegation of this power to the President would seem indispensable, since the exigency might occur in the recess of Congress; and by the Constitution, the President is not only Commander-in-Chief of the army and navy, and of the militia, when called into service, but he is also (as we shall see) bound to see the laws duly executed. But the question has arisen, whether the President has the sole and exclusive authority to judge and decide, whether the exigency has arisen, or not; or, in other words, whether any subordinate officer of the militia, or any State magistrate, has a right to judge and decide for himself, whether the exigency has arisen, and whether, when called upon, he is bound to obey the re quisitions of the President or not.
This question was formerly a matter of heated controversy, and at last came before the Supreme Court of the United States for decision, where it was finally settled, upon full deliberation, that, from the necessity of the case, the President is the exclusive judge of the exigency; and that his decision was conclusive. The reasoning, which led to this conclusion, cannot be repeated in this work; but it deserves the ar 'entive consideration of every statesman.
$ 197. Another question, of great practical importance, is, Who, in the personal absence of the President, is to command the militia called forth in the service of the National Government ? Are the commanding officers of the militia of each State, so in service, to command their separate detachments during his absence, or has the President a right to delegate his authority to any superior military officer of the United States, or of the militia, to act as commander of the whole force during his absence ? This question was also formerly a matter of great controversy ; and perhaps is not now definitively settled. Practically, however, the National Government has constantly insisted upon the right of the President, in such cases, to appoint a person to act as his delegate in the command ; and most of the States of the Union have acquiesced in this decision, as indispensable to any effective military operations.
Seat of Government, and other Ceded Places. $ 198. The next power of Congress is, “to exercise exclusive legislation, in all cases whatsoever, over such District, not exceeding ten miles square, 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 piaces purchased by the consent of the Legislature rf the
State, in which the same shall be, for the erection of ferts, magazines, arsenals, dockyards, and other needfu build
$ 199. A moment's consideration will establish the importance and necessity of this power. Without it, the National Government would have no adequate means to enforce its authority in the place, in which its public func tionaries should be convened. . They might be insulted, and their proceedings might be interrupted with impunity. And if the State should array itself in hostility to the proceedings of the National Government, the latter might be driven to seek another asylum, or be compelled to an humiliating submission to the State authorities. It never could be safe, to leave, in the possession of any one State, the exclusive power to decide, whether the functionaries of the National Government should have the moral or physical power to perform their duties. Nor let it be thought, that the evil is wholly imaginary. It actually occurred to the Continental Congress, at the very close of the Revolution, who were compelled to quit Philadelphia, and adjourn to Princeton, in order to escape from the violence of some insolent mutineers of the Continental army
$ 200. It is under this clause, that the cession of the present District of Columbia was made, by the States of Maryland and Virginia, to the National Government; and the present seat of the National Government was established at the city of Washington, in 1800. That convenient spot was selected by the exalted patriot, whose name it bears, for this very purpose. And who, that loves his country, does not desire, that it
inay remain a monument of his wisdom, and the eternal capital of the republic ?
$ 201. The other clause, as to cessions for forts, magazines, arsenals, dockyards, and other needful buildings, is dictated by a like policy. The public money expended on such places, the public property deposited there, the military, and other duties to be executed there, all require, that the sovereignty of the United States should have exclusive jurisdiction and control over them
It would be wholly improper, that such places, on which the security of the Union may materially depend, should be subjected to the authority of any single member of it. In order to guard against any possible abuse, the consent of the State Legislature is necessary to divest its own territorial jurisdiction ; and, of course, that consent will never be given, unless the public good will be manifestly promoted by the cession.
$ 202. A great variety of cessions have been made by the States under this power. And generally there has been a reservation of the right to serve all State process, civil and criminal, upon persons found therem. This reservation has not been thought at all inconsistent with the provision of the Constitution ; for the State process, in this respect, becomes the process of the United States, and the general power of exclusive legislation remains with Congress. Thus, these places are not capable of being made a sanctuary for fugitives, to exempt them from acts done within, and cognizable by, the States, to which the territory belonged ; and, at the same time, Congress is enabled to accomplish the great objects of the
$ 203. The power of Congress to exercise exclusive jurisdiction over these ceded places is conferred on that body, as the Legislature of the Union; and cannot be ex ercised in any other character.
A law passed in pursu ance of it is the supreme law of the land, and binding on all the States, and cannot be lefeated by them. The power to pass such a law carries with it all the incidental powers to give it complete and effectual execution; and such a law may be extended in its operation incidentally throughout the United States, if Congress think it necessary so to do. But if intended to have efficiency beyond the District, language must be used in the act expressive of such an intention; otherwise it will be deemed to be purely local.
9 204. It follows from this review of the clause, that the States cannot take cognizance of any acts done in the ceded places after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of