May, 1820, they passed an act providing that the system of discipline observed by the militia throughout the United States should be the same as observed by the regular army.

207. A court-martial that imposes a fine upon a man not liable to militia duty are trespassers, as well as the officer who distrains for such fine.1

§ 208. Clause 16. 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 government of the United States, and to exercise like authority over all places, purchased by consent of the Legislature of the state, in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; And

Clause 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

§ 209. In pursuance of the power to exercise exclusive jurisdiction, &c. &c., Congress, in July, 1790, accepted of a grant from Virginia and Maryland, of ten miles square, on the Potomac, for the seat of government, which is the present District of Columbia. Over this territory Congress have exclusive jurisdiction, and exercise all legislative powers.

§ 210. The jurisdiction over various other sites, as West Point, &c., has been granted by the Legislatures of the respective states in which they lie, for military and naval purposes.

§ 211. The power to exercise exclusive jurisdiction includes the power to tax.2

212. Congress have the power of general as well

13 Cranch, 331. 25 Wheaton's Rep. 317.

as local jurisdiction, in reference to acts committed within that jurisdiction.1

§ 213. The states cannot take cognizance of any acts done in the ceded place after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of the states, and can no longer exercise any political rights under the laws of the state.2

But there is commonly reserved by the states a right of executing criminal process within the limits of ceded places, and this may be exercised in perfect consistency with the right of jurisdiction on the part of the United States.

§ 214. The clause giving Congress power to make all laws which shall be necessary and proper to carry the foregoing into execution, has given rise to more diversity of sentiment, discussion, and controversy than any other in the Constitution. The reason is obvious ; about the direct provisions of that instrument men of ordinary comprehension could have but little difference of opinion; but as to what is necessary and proper, different men might form very different judgments: so it happened; the Constitution had scarcely gone into operation under the administration of Washington, when a radical difference of opinion arose, in relation to the charter of the United States Bank.

§ 215. In 1791, the Secretary of the Treasury recommended the establishment of a National Bank, as necessary to the proper administration of the financial concerns of the nation. A bill for that purpose was introduced into the House of Representatives, and warmly opposed on constitutional grounds. Mr. Giles, Mr. Madison, and Mr. Jackson were among the opponents of the measure, and Mr. Ames, Mr. Boudinot, and Mr. Gerry among its advocates. The former denied its consti

12 Kent's Comm. 403; 6 Wheaton, 426. Comm. 103; 8 Mapach. 72.

#3 Story's

tutionality, on the ground that Congress could not exercise any powers not expressly granted, that no power was anywhere given to charter a bank,-and that, if such implied powers were exercised, there would be no limits to the powers of the general government. Their opponents contended that Congress had power to pass all laws necessary and proper to effect the ends proposed by the Constitution,-that, in a confused state of the general currency, such a bank was necessary to the power of levying and collecting taxes,-and that it was implied in the power to borrow money, which also includes the power to lend, and that without the exercise of implied powers, the government could do nothing. After much debate, the bill passed2 both Houses of Congress. The President (Washington), on receiving the bill, called a cabinet council, in which it was again debated. The Secretary of State (Mr. Jefferson) and the Attorneygeneral denied its constitutionality, while the Secretaries of the Treasury and War (Hamilton and Knox) agreed with the majorities in Congress. The President, after deliberation, gave it his signature, and the weight of his favourable judgment.

United States

§ 216. In 1811, the charter of the Bank expired, and it was not rechartered. In the debate upon the question of its constitutionality, it was advocated by Mr. Crawford, and opposed by Messrs. Clay and P. B. Porter, upon the same grounds as it had formerly been advocated and opposed by Messrs. Ames and Madison.3

§ 217. In 1816, a new bank was chartered, with a much larger capital. The currency of the country was then in a very depreciated and bankrupt condition. The effect of the establishment of the bank was to restore a

1 Elliott's Debates, vol. 4. 34 Elliott's Debates, 268, 269.

2 Kent's Comm. vol. 1, p. 234.

healthy action to the money market, and resuscitate credit.

§ 218. In 1832, in anticipation of the expiration of the charter in 1836, an application was made for its renewal, and the bill passed both Houses of Congress, but was rejected by the interposition of the Executive Veto, by President Jackson.1

§ 219. The action of the Supreme Court upon the subject has been direct and distinct. In the case of McCullough vs. State of Maryland,2 that tribunal decided,

1st, That Congress has power to incorporate a Bank.

2d, That there is nothing in the Constitution which excludes incidental or implied powers; and that if the end be within the scope of the Constitution, all the means which are appropriate, and are adapted to the end, and not prohibited, may be constitutionally employed to carry it into effect.

3d, That the Bank of the United States has a constitutional right to establish offices of discount and deposite within the states.

4th, That the states cannot tax the branches: they have no right to tax any of the constitutional means used by the government to effect constitutional ends.

5th, That the last rule does not extend to any of the real property held by the bank in particular states, nor to the proprietary interests of any citizen of that state in the bank.

§ 220. In the case of Osborne vs. Bank of the United States, the court decided, 6th, That the bank may sue in the Federal Courts.

§ 221. These several decisions gave validity to the charter, and the acts of the United States Bank, so

1 Journals of Congress, 1832. 39 Wheaton, 733.

24 Wheaton's Rep. 316

far as its constitutionality could be established by judicial authority, it was so. The authorities upon this subject stand thus:-Congress passed acts in its favour in 1791, 1816, and 1832. On the other hand, in 1811, they rejected a bill for its recharter. Of the Executive, Presidents Washington, Adams, Madison, and J. Q. Adams approved of it; President Jackson alone disapproved. The supreme judicial tribunal of, the Union has given a solemn decision in its favour. The constitutionality of a National Bank is therefore settled, as far as it can be, by decision, precedent, and authority. The expediency of such an institution may at any time be questioned by the representatives of the people, and so, as a matter of argument or theory, may its constitutionality, simply because all things are open to discussion at the ultimate tribunal of public opinion; but the existence of the bank being once supposed, nothing can shake its validity while the decisions of the Supreme Court remain unimpaired and the Constitution unviolated.

§ 222. Another incidental power claimed and exercised by the government is to create a priority of payment in their favour, in case of the death or insolvency of the debtor. Congress, by their acts of 1789, 1790, 1792, 1797, and 1799, gave this priority of payment over private creditors, in cases of insolvency, and the distribution of the estates of deceased debtors.1 In the case of Fisher vs. Blight,2 the power thus vested in the government by act of Congress was declared to be constitutional, and coming within the legitimate scope of means adapted to an end which is constitutional. The government must pay the debts of the Union, and therefore is vested with the most eligible means of doing it.

§ 223. The principle is, that the government of the

11 Kent's Comm. 230.

22 Cranch, 358.