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What is the

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fuse or neglect to march to the place of rendezvous, agreeably to the orders of the Governor, founded on the requisition of the President of the United States. Id. The act of the Congress of the United States, of the 3d March, 1863, 12 Stat. at Large, § 172, declared, that all citizens of the United States, &c., are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States, when called out by the President for that purpose." In New York, it has been determined, that this act is unconstitutional, on the ground that it attempted to create a national militia, a power not granted to the Federal Government, which is only empowered to raise an army and navy; whilst the militia is but a State force, though liable to be called into the service of the United States, by the President, in case of emergency. The People v. Stephens, before McCunn, J., at Chambers, 14th July, 1863. In Pennsylvania, however, Cadwallader, J., decided that the act was constitutional. Antrim's Case, 20 Leg. Int. 200; 2 Brightly's Dig. 40, note a; Kneedler v. Lane, 9 Wright, 238. See ex parte Coupland, 26 Tex. 394, where it was held that a conscript law, which declared all men between the ages of 17 and 50 years, was constitutional.

135. When called out, they are subject to the rules and articles power over of war, save only that, when tried by court-martial, the court the militia? shall be composed of militia officers. (1 Brightly's Dig. p. 622, sec. 4; p. 82, sec. 270.) Atty. General Bates, 18th April, 1861.

Where has

congress exclusive power of

The obvious theory of the Constitution and law is, that whilst Congress shall prescribe, by general rules, an uniform militia system for the States, securing the enrollment of all the able-bodied white male citizens, and maintaining the system of discipline and field exercise observed in the regular ariny (1 Brightly, 621), yet that the details, militia organization, and management shall be left to the State governments, requiring that only an annual report of the condition of the service shall be left to the President. Idem.

This power was first exercised to suppress the insurrection in Pennsylvania, in 1794. (5 Marshall's Life of Washington, ch. 8, pp. 576-592; 2 Pitk. His. ch. 23, pp. 421-592; the next, during the war of 1812, with Great Britain; and the last was the memorable occasion, to suppress the rebellion, on the 13th of April, 1861, and during its continuance. See the Act of 1795, 1 St. 424; Houston v. Moore, 3 Sergt. & R. 169; and S. C. 5 Wheat. 60; Martin v. Mott, 12 Wheat. 19; Duffield v. Smith, 3 Sergt. & R. 590; Vanderheyden v. Young, 11 Johns. 150.

[17.] To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles fegislation? 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 places purchased by the consent of the legislature of the State in which the same sball be,

for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. And,

the district

133. "EXCLUSIVE LEGISLATION OVER THE DISTRICT."-This By what provision was executed by the cession of the District of Columbia states was by Maryland and Virginia; and the legislation by Congress over ceded? the inhabitants and public property there ever since. See 1 Brightly's Dig. p. 233–252. Congress retroceded to Virginia, Alexandria and the surroundings, so that the District is, in fact, only about seven miles square. For the reasons for this exclusive government, see the Federalist, No. 43; 2 Elliot's Debates, 92, 321, 322, 326; Rawle's Const. ch. 9, p. 112, 113. See 2 Brightly's Dig. 233–252.

The site was selected by President WASHINGTON, after whom the capital was named. The inhabitants are citizens of the United States; and might constitutionally have a local legislature. See the Federalist, No. 43; United States v. Bevans, 3 Wheat. 336, 388. In its exercise, Congress acts as the legislature of the Union. Cohens v. Virginia, 6 Wheat. 424. The elective franchise allows no distinction on account of race or color. 14 Stat. 375.

137. This includes the power of taxation. Loughborough v. Define the Blake, 5 Wh. 317. The charter of the City of Washington did not powers! authorize the corporation to force the sale of lottery tickets in States whose laws prohibited such sales. Cohens v. Virginia, 6 Wh. 264.

The right of exclusive legislation carries with it the right of exclusive jurisdiction. United States v. Coryell, 2 Mas. 60 91; 6 Opin. 577. Even to recapture by military force. 9 Op. 521. This second clause binds all the United States. (Cohens v. Virginia, 6 Wheat. 224.) Story's Const. § 1229.

136, 137.

over forts?

Congress has the right to punish murder in a fort, or other Define the place within its exclusive jurisdiction; but no general right to pun- jurisdiction ish murder committed within any of the States. Idem. The power to legislate in these places, ceded by a State, carries with it, as an incident, the right to make that power effectual. Cohens v. Virginia, 6 Wheat. 428. Congress does not act as a local legislature, but exercises this particular power, like all other powers, in its hh character as the legislature of the Union. Id.; Story's Const. § 1234. But the purchase of lands by the United States for public purposes, within the territorial limits of a State, does not of itself oust the jurisdiction or sovereignty of such State, over the lands so purchased. United States v. Coryell, 2 Mas. 60. Constitution prescribes the only mode by which they can acquire land as a sovereign power; and, therefore, they hold only as an individual when they obtain it in any other manner. Commonwealth v. Young, Brightly, 302; People v. Godfrey, 17 Johns. 225; United States v. Traver, 2 Wh. Cr. Cas. 490; People v. Lent, Id. 548. It seems, however, that the States have not the right to tax lands purchased by the United States for public purposes, although the consent of the legislature may not have been given to the purchase. United States v. Weise, 2 Wall. Jr. 72. And see 7 Opin. 628. And see Commonwealth v. Cleay, 8 Mass. 72;

The

What are the general pow

gress?

Rawle's Const. ch. 27, p. 238; Sergeant's Const. ch. 28 [ch. 30]; 1 Kent's Com. Lect. 19, pp. 402-404; Story's Const. § 1222-1224. After a cession by a State, it cannot take cognizance of any acts done in the ceded places after the cession. And the inhabitants of those places cease to be inhabitants of the State, and can no longer exercise any civil or political rights under the laws of the State. But if there has been no cession, the State jurisdiction still remains. (The People v. Godfrey, 17 Johns. 225; Commonwealth v. Young, 1 Hall's Journal of Jurisprudence, p. 47; 1 Kent's Com. Lect. 19, p. 403, 404; ch. 28 [ch. 30]; Rawle's (Const. ch. 27, p. 238240) Story's Const. § 1127.

[18.] To make all laws which shall be necessary and ers of Con- 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 office thereof.

71.

Define necessary?

138. This does not mean absolutely necessary, nor does it imply the use of only the most direct and simple means calculated 269, 253, 259. to produce the end. Commonwealth v. Lewis, 6 Binn. 270-1; McCulloch v. Maryland, 4 Wh. 413; Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 438-9. And, therefore, Congress had power to charter the Bank of the United States, as a necessary and useful instrument of the fiscal operations of the government. Id. 316, 422. So, also, Congress has power, under this general authority, to provide for the punishment of any offenses which interfere with, obstruct, or prevent commerce and navigation with foreign States and among the several States, although such offenses may be done on land. United States v. Coombs, 12 Pet. 78. Necessary and proper are to be considered synonymous terms. Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 439. There is no warrant for saying that the powers shall be construed strictly. A reasonable import of terms should be given. (Martin v. Hunter, 1 Wh. 304, 326-7.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 413, 415. See Federalist, 33, 44.

Is this a

power or a limitation? 93, 94.

82, 83, 97-99.

This section is among the powers of Congress, not the limitations; it enlarges and adds to, but does not diminish or lessen the powers. (McCulloch v. Maryland, 4 Wh. 413.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 443. Under this power, Congress may exempt the national securities from taxation. (The People v. The Tax Commissioners, 2 Black, 620.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 444. Where the power is given to Congress, it must judge of the means necessary to effect the end. The end must be legitimate. Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 445, 450; The United States v. Marigold, 9 How. 560. Under clause 4, and the power to coin money, Congress has the power to make the notes of the Government a legal tender. Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 454.

This power was greatly assailed. See Federalist, 42, 43, 44; 1 Elliot's Debates, 293, 294, 300; 2 Id. 196, 342; Tuck. Black.

Com. Appendix, 286, 287; Hamilton on Banks, I Hamilton's Works, 121; McCulloch v. Maryland, 4 Wheat. 406, 407, 419; Calhoun's Essay on the Constitution; Story's Const. Ch. XXIV. §

1236-1258.

"POWER" is the ability or faculty of doing a thing; and employ- Define ing the means necessary to its execution; the right to make laws; power? Story's Const. § 1237, 1241.

Powers given by the Constitution, imply the ordinary means of execution. (McCulloch v. Maryland, 4 Wheat. 409; 4 Elliot's Debates, 217-221.) Story's Const. 1237.

"Expressly delegated," was in the Articles of Confederation. (Ante p. 9, Art. II). Story's Const. § 1238.

71, 93.

269.

the clause?

The plain import of the clause is, that Congress shall have all the What is the incidental and instrumental powers necessary and proper to carry import of into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to Congress. Story's Const. § 1243. Some have gone further than this. Governor Randolph, 2 Elliot's Debates, 342; Mr. Gerry in 1791, 4 Elliot's Debates, 225, 227. Ex parte Coupland, 26 Tex. 415, 416.

The power must be expressed, or be an incident. Virginia Report and Resolutions, Jan. 1800, p. 33, 34; 1 Tuck. Black. Com. App. 287, 238; President Munroe's Exposition and Message, 4th May, 1822, p. 47.

The degree of necessity cannot control. 1 Hamilton's works, 118, 120.

"NECESSARY " often means no more than needful, requisite, inci- Define necdental, useful or conducive to. Story's Const. § 1248.

essary?

The word "necessary" has no fixed character peculiar to itself, 146–149, 162as in "abo utely necessary for executing its inspection laws," as 164. contrasted with this necessary and proper, proves." Story's Const. S1248-1250. See McCulloch v. Maryland, 4 Wheat, 413-418.

"PROPER" has a sense, admonitory and directory. It requires Define that the means should be bona fide appropriate to the end, proper? McCulloch v. Maryland, 4 Wheat. 419, 420; Story's Const. § 1253.

among the

Among the necessarily incidental powers may be classed the right What may to acquire and govern territory; the right to contract and sue; to be classed punish offenders on board ships; to protect collectors of revenue, incidental men in the postal service, and army contractors. (Dugan v. The powers? United States, 3 Wheat. 173, 179, 180; United States v. Tingey, 232–4. 5 Peters, 115; United States v. Bevans, 3 Wheat. 388; The Exchange, 7 Cranch, 116; S. C., 2 Peters, 439; Osborn v. Bank of United States, 9 Wheat, 365, 366); Story's Const. § 1256-1258, and note 2.

*

The law must be necessary and proper. As to necessary, it must be borne in mind that no power can execute itself. * The means are auxiliary powers *

powers.

*

*

*

*

*

*

* ; that is implied

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*

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But the law must also be proper as well as necessary.
That is, even implied powers are subject to important conditions,
when used as means to carry powers or rights into execution.
They must be carried into execution so as not to injure others; and

*

269.

124.

What is the

Inhibition as

can slave

trade?

as connected with and subordinate to this, that where the implied powers or means used come in contact with the implied powers or means used by another, in the execution of the powers or rights vested in it, the less important should yield to the more important, the convenient to the useful, and both to health and safety; because it is proper they should do so. (Calhoun's Discourse on the Const.) Ex parte Coupland, 26th Tex. 416, 417. The learned Judge also quotes to the same effect from McCulloch v. Maryland.

The question is not, whether or not the power to raise armies is granted; but whether to raise them by conscription is implied. (Mr. Munroe's plan in 1814 contrasted.) Id.

SEC. IX.-[1.] The migration or importation of such to the Afri- persons as any of the States now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

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Define person? 24, 35, 46.

85-92.

When may the privilege

139. MIGRATION OR IMPORTATION OF PERSONS.-" Migration " here, doubtless, means immigration; but as connected with "importation," it is used nearly synonymously with that term; and both have reference to the "PERSONS" who formed the basis of the African slave-trade. This trade was abolished on the 2d of March, 1807. 2 St. 428; 1 Brightly's Dig. 837. Those who wish to consult the statutes on this subject, and the luminous decisions upon a question now mostly obsolete in the United States, are referred to Brightly's Dig., chapter "SLAVE-TRADE," vol. 1, p. 835, and notes thereon; Scott v. Sandford, 19 How. 397; 1 Kent's Com. Lect. 9, pp. 192-203; Cobb on Slavery; Story's Const. § 1331, 1334; 2 Pitk. History, ch. 20, pp. 261, 262; 2 Elliot's Debates, 335, 336; 3 Id. 97, 98, 250, 251; Federalist, 42.

This section has no application to the State governments. Butler v. Hopper, 1 Wash. c.c. 499.

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The word " PERSON may fairly be said to refer to an imported African, and bears some analogy to the same word in Art. I., sec. 2, clause 3.

Migration seems appropriately to apply to voluntary arrivals, as importation does to involuntary arrivals; and so far as an exception from a power proves its existence, this proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, as to those who pass involuntarily. (Gibbons v. Ogden, 9 Wheat. 206-230.) Story's Const. 1387.

[2.] The privilege of the writ of habeas corpus shall of Ilabeas not be suspended, unless when in cases of rebellion or suspended? invasion the public safety may require it.

Corpus be

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