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suppress insurrections and repel invasions implies no prohibition against employing the army and navy for such purposes; nor does it imply that the militia can not be used for suppressing a rebellion as well as a mere insurrection. Metropolitan Bank v. Van Dyck, 27 N. Y.400 ; Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465; Texas v. White, 7 Wall. 700.
Instead of the power to call forth the militia being in exclusion of any of the preceding grants of the power of war, or operating as an exception or proviso, it is a continuation of the enumeration of powers, and is an additional grant subsidiary to the former, as its place in the section, its terms, its design and the subject-matter all import. While the framers of the Constitution intended that the nation should possess the primary and essential means of self-preservation, in its fullest extent, by the power to declare war, raise armies and maintain navies, and provide for the common defense; they also foresaw, through the genius of the people, the nature of the Government as a representative democracy, and the force of other powers and limitations operating, that it would be unlikely that a large standing army would always be on foot,'and the nation thereby ready for every emergency : hence the power to call out the militia in the three cases was added. Addition is not exclusion. Kneedler v. Lane, 45 Penn. 238; s. c. 3 Grant, 465.
A State law providing for the punishment of a person who neglects to obey an order calling forth the militia is valid. Houston v. Moore, 5 Wheat. 1; S. C. 3 S. & R. 169.
Government of Militia. (D) There is a distinction between these two powers. Calling the militia forth is one thing, governing them when they are in actual service is another. Houston v. Moore, 3 S. & R. 169; S. C. 5 Wheat. 1.
So long as the militia are acting under the military jurisdiction of the State to which they belong, the powers over them are concurrent in the General and State Governments. Congress has power to provide for organizing, arming and disciplining them; and this power being unlimited, except in the two particulars of officering and training them according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as State militia, the power of the State governments to legislate on the same subject having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government operating upon the same subject. Houston v. Moore, 5 Wheat. I; S. C. 3 S. & R. 169.
The power of the several States to govern their own militia is not derived from the Constitution. They had it before the adoption of the Constitution,
and possess it still, except where it has been restricted or yielded to the United States. Houston v. Moore, 3 S. & R. 169; S. C. 5 Wheat. I.
After a detachment of the militia has been called forth, and has entered into the service of the United States, the authority of the General Government over such detachment is exclusive. Over the national militia the State governments never had or could have jurisdiction. None such is conferred by the Constitution, consequently none such can exist. Houston v. Moore, 5 Wheat. 1 ; S. C. 3 S. & R. 169.
5 When a State law is to operate on the militia before they are in actual service, it may not only not interfere with the law of Congress, but have a powerful effect in aid of it. Houston v. Moore, 3 S. & R. 169; S. C. 5 Wheat. I.
'"Organizing " obviously includes the power of determining who shall compose the body known as the militia. The general principle is that a militia shall consist of the able-bodied male citizens, but this description is too vague and indefinite to be laid down as a practical rule. It requires a provision of positive law to ascertain the exact age which shall be deemed neither too young nor too old to come within the description. The power is given to the General Government to fix the age precisely, and thereby to put an end to doubt and uncertainty. Opinions of Justices, 80 Mass. 614.
The President may exercise his command of the militia by the officers of the militia duly appointed. There is no provision of the Constitution authorizing any officer of the army of the United States to command the militia. Opinions of Justices, 80 Mass. 548.
District of Columbia. (9) In legislating for the District of Columbia, Congress is bound by the prohibitions of the Constitution. U.S. v. More, 3 Cranch, 160, note.
These terms are not limited by the principle that representation is inseparable from taxation. Loughborough v. Blake, 5 Wheat. 317.
In legislating for the District of Columbia, Congress necessarily preserves the character of the legislature of the Union, for it is in that character alone that the Constitution confers on it the power of exclusive legislation. Cohens v. Virginia, 6 Wheat. 264.
Congress possesses the power to lay and collect direct taxes within the District of Columbia in proportion to the census directed to be taken by the Constitution. Loughborough v. Blake, 5 Wheat. 317.
Congress may confer upon the city of Washington authority to assess upon the adjacent proprietors of lots, the expense of repairing streets with a new and different pavement, or repairing an old one. Willard v. Presbury, 14 Wall, 676.
Congress possesses the power to construct an aqueduct for the use of the District of Columbia, which shall, if necessary, draw its supply of water from within the nits of a State, and use and occupy land for that purpose in the State, with its permission and consent. Reddall v. Bryan, 14 Md. 444.
Forts. (r) It seems apparent that the members of the convention who formed the Constitution, contemplated that places for forts, magazines, arsenals, dockyards and other buildings connected therewith, would be required to be purchased from individuals in the several States where their selection and erection might be deemed necessary, and that it was still more important to give exclusive legislation over the places ceded for public convenience and safety ; but still the consent of the State legislature was required before such purchases could be made of individuals and the places so used. May it not also have been intended that forts and permanent garrisons should not be thus erected without the consent of the State ? This inference would be warranted by the supposition that the States would view with natural jealousy the collection of numerous armed forces stationed among them in permanent works, established without their consent and beyond their control. McConnell v. Wilcox, 2 Ill. 344.
The United States can acquire the right of exclusive legislation within the territorial limits of a State, only in the mode pointed out in the Consti
a tution. The essence of the provision is, that the State shall freely cede the particular place to the United States for one of the specific and enumerated objects. The jurisdiction can not be acquired tortiously or by disseizin of the State; much less can it be acquired by mere occupancy with the implied or tacit consent of the State, when such occupancy is for the purpose of protection. People v. Godfrey, 17 Johns. 225; Clay v. State, 4 Kans. 49; U. S. v. Tierney, 1 Bond, 571.
Ratification by the State in addition to purchase from the owner, is necessary to vest full sovereignty over land in the United States. U. S. v. Cornell, 2 Mason, 60; Comm. v. Young, Brightley, 302 ; U. S. v. Tierney, i Bond, 571.
An act of a State legislature will not vest the jurisdiction in the United States, unless there is some act on the part of the latter to show an acceptance of the grant. People v. Lent, 2 Wheel. Cr. Cas. 548.
Congress may relinquish jurisdiction over territory acquired from a State, for such jurisdiction is not an original and inherent power, but a secondary and acquired power. Renner v. Bennett, 21 Ohio St. 431.
When land has been purchased by the United States for military or other purposes, it can not be sold without the special authority of Congress. In such cases the purchase is made for a specific object, and being purchased with the consent of the State under the Constitution, there is a cession of jurisdiction as well as of property. To transfer property so acquired, and relinquish the jurisdiction, the authority of Congress is indispensable. U. S. v. Railroad Bridge Co. 6 McLean, 517.
Congress may own and use property within the limits of a State,without acquiring jurisdiction over the territory. Renner v. Bennett, 21 Ohio St. 431.
If the United States merely acquires land in a State from the owner, it holds the land in subordination to all the municipal regulations of the State. Comm. v. Young, Brightly, 302. The
power of exclusive legislation does not extend to land rented by the Government for a temporary purpose.
U. S. v. Tierney, i Bond. 571. Where jurisdiction over territory has been acquired for a temporary purpose, the consent of the State is not necessary to revest the jurisdiction when it is abandoned by the Government. Renner v. Bennett, 21 Ohio
Congress may relinquish jurisdiction over territory acquired from a State without abandoning the use of the property. Renner v. Bennett, 21 Ohio St. 431.
A person who resides on land which has been ceded to the United States, is not liable to taxation in the State on account of such residence. Webster v. Seymour, 8 Vt. 135.
No offenses committed within the limits of territory purchased with the consent of the State, can be punished in the State courts. Comm. v. Clary, 8 Mass. 72; U. S. v. Ames, 1 W. & M. 76.
When a purchase of land for any of the enumerated purposes is made by the national government, and the State has given its consent to the purchase, the land so purchased by the very terms of the Constitution ipso facto, falls within the exclusive legislation of Congress, and the State jurisdiction is completely ousted. U. S. v. Cornell, 2 Mason, 60; S. C. 2 Mason, 91.
The Government has exclusive jurisdiction over the ceded territory, although the act of cession provides that civil and criminal process issued under the authority of the State may be executed within the ceded lands. Mitchell v. Tibbetts, 34 Mass. 298; U. S. v. Cornell, 2 Mason, 60; S. C. 2 Mason, 91; U. S. v. Davis, 5 Mason, 356; U. S. v. Travers, 2 Wheel. Cr. Cas. 490 ; Comm. v. Clary, 8 Mass. 72.
A State retains jurisdiction over lands ceded to the United States until the latter legislates for it. People v. Lent, 2 Wheel. Cr. Cas. 548.
Congress has no exclusive jurisdiction over land in a State which is purchased by a corporation created by an act of Congress. In re John 0. Conner, 37 Wis. 379; contra, Sinks v. Reese, 19 Ohio St. 306.
Necessary Laws. (s) This clause is placed among the powers of Congress, not among the limitations on those powers. Its term purports to enlarge, not to diminish, the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. M'Culloch v. State, 4 Wheat. 316.
This limitation on the means which may be used is not extended to the powers which are conferred. Gibbons v. Ogden, 9 Wheat. I; S. C. 17 Johns. 488; 4 Johns. Ch. 150.
If the clause does not enlarge it can not be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution. A sound construction of the Constitution must therefore allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. M'Culloch v. State, 4 Wheat. 316; Comm. v. Morrison, 2 A. K. Marsh, 75; U. S. v. Marigold, 9 How. 560; Mitchell v. Steelman, 8 Cal. 363; U. S. v. Fisher, 2 Cranch, 358; Dickey v. Turnpike Co. 7 Dana, 119.
It is essential to just construction that many words which import something excessive, should be understood in a more mitigated sense ; in that sense which common usage justifies. The word “ necessary" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison, and is often connected with other words which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. In its construction the subject, the context, and the intention of the person using it are all to be taken into view. M'Culloch v. State, 4 Wheat. 316; Comm. v. Morrison, 2 A. K. Marsh. 75.