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militia in the President, and it is now within his discretion to decide when such action is necessary and proper, and his decision in this matter is not subject to review by the judicial department of either the United States or any one of the separate States.137

The militia may be called out by the President for the purpose of upholding the Government of a State which is recognized by the President as the lawful government of the State.138 In calling out the militia of a State the President may give his orders to the Governor of the State or to any other official.139 This grant of power carries with it the right to take all necessary steps to guard against the renewal of an insurrection which has been put down.140 The relations of the National Government to the State militia before they are called into actual services are not such as to authorize the President, without legislation, to establish in the war department a bureau to supervise and control the militia.141

§ 159. Organizing and drilling the militia.-Clause 16: (The Congress shall have power) "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."

The object of this clause is to secure a certain degree of uniformity and national control, in times of danger, among the militia of all the States, while reserving to the States their ordinary management and control.142 The power of the State governments to legislate on the subject is concurrent with that of Congress, the Federal law prevailing in case of conflict. After a detachment of militia has been actually mustered into the service of the United States, the control of the United

137 Martin v. Mott, 12 Wheaton, 19.

139 Luther v. Borden, 7 Howard, 1, 8.

139 Mouston v. Moore, 5 Wheaton,

140

Raymond v. Thomas, 91 U. S. 712, 714.

141 10 opinions of Attorney General, 17.

142 Houston v. Moore, 5 Wheaton,

States Government over them is exclusive.14 143

Congress also

has the exclusive power to determine who shall compose the militia.

§ 160. The seat of Government of the United States.Clause 17: (The Congress shall have power) "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 the consent of the legislature of the States in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."

144

The jurisdiction of the United States over the District of Columbia vested on the first Monday in December, 1800, under the Act of cession passed by the legislature of Virginia, December 3, 1789, providing "that a tract of Country not exceeding ten miles square, or any lesser quantity, to be located within the limits of this State, and in any part thereof, as Congress may by law direct, shall be, and the same is hereby forever ceded and reliquished to the Congress and Government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing, or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of Government of the United States."145

The sovereignty of the United States over the District of Columbia is permanent. The ten miles square that might by cession of particular States and the acceptance of Congress become the seat of Government was meant by the framers of the Constitution to be as permanent as the States from whose boundaries their territory was to be taken. The seat of government, unlike the territory acquired by conquest, treaty, and cession, was not to be donated or accepted as a transitory territorial boundary. It was a part of the constitutional scheme to provide for the perpetual use of enough territory free from

143 Id. 144 United

States Constitution, Art. I., Sec. 8, Clause 17.

145 United States v. Hammond, 1 Cranch. (C. C. x 15.)

State control to meet the demands of a permanent national seat of government.146

The United States possesses full and unlimited jurisdiction both of a political and municipal nature over the District of Columbia.147 National and municipal legislative powers are here blended in one body-Congress.148 No laws can operate in this district except in virtue of congressional sanction. The laws of Maryland and Virginia, which were adopted by the Act of Congress on the 27th of February, 1801, 2 Statutes Law, 103, do not operate here, proprio vigore, but solely by virtue of the Act which adopted them in mass, instead of enacting them totidem verbis.149

Crimes committed in the District of Columbia, are not crimes against the District but against the United States. 150 The rule that there are no common law offenses against the United States does not apply to the District of Columbia.151 The power of the United States over the District of Columbia includes the general and complete power of taxation.152 An inhabitant of

the District of Columbia, who makes it his domicile, is not a citizen of any State.153 The deprivations of the citizens of the District of Columbia of all political rights is contrary to the principles of our Government, but is upheld by a necessary exception.154

The last portion of this clause, giving Congress jurisdiction over land purchased in any State, with the consent of the legislature thereof, for certain specified purposes, must be strictly followed in order that such exclusive jurisdiction may rest in Congress. When a purchase of land for any of these purposes is made by the National Government, and the State legislature

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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.155 This result of exclusive jurisdiction over land does not follow when the land has been purchased by the United States without the consent of the State and where political jurisdiction over the same has not been otherwise ceded to the United States by the State.156

The reservation which has usually accompanied the consent of the States, that civil and criminal process of the State courts may be served in the places purchased is not considered as interfering in any respect with the supremacy of the United States over them, but is admitted to prevent them from becoming an asylum for fugitives from justice.157 Within the places purchased and used for the purposes mentioned in the Constitution, the national and municipal powers of government, of every description, are united in Congress.158

§ 161. The implied powers of Congress.-Clause 18: (The Congress shall have power) "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 any department or office thereof."

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The necessity for the insertion of such a clause is at least doubtful. In the "Federalist" it is said that this clause is "only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. * * A power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given,

155 United States v. Cornell, 2 Mason, 60.

158 United States v. San Francisco Bridge Co., 88 Fed. Rep, 894.

157 Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 533.

158 Pollard & Hagan, 3 Howard, 212, 223.

might in the execution of that power, pass all laws necessary and proper to carry it into effect."159

"The Constitution provides expressly for the exercise of such powers to the full extent that they may be 'necessary and proper." No other limitation is impaired. Without this provision, the same result would have followed."160 In the case of McCulloch v. Maryland it was even argued in behalf of the State of Maryland that this clause must be construed as a restriction on the powers already granted to Congress instead of as a grant of additional power.

The power of legislation granted by this clause is, by its words, carefully confined to the specific objects before enumerated.161 But Congress has under this clause a large discretion as to the means to be employed in162 the exercise of any power granted to it.

The most important construction of this clause is that contained in the decision rendered by Chief Justice Marshall in the case of McCulloch v. The State of Maryland et al.;163 in which a broad liberal meaning was given to this clause which has been since followed. This decision was in part as follows: "But the argument which most conclusively demonstrated the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ those which, in its judgment, would advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the Government, were in themselves constitutional.

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