insurrections, and in repelling invasions. (a) Such a concurrent exercise of power in no degree interferes with, or obstructs the exercise of, the powers of the Union. Congress may, by suitable laws, provide for the calling forth of the militia, and annex suitable penalties to disobedience of their orders, and direct the manner in which the delinquents may be tried. But the authority to call forth, and the authority exclusively to govern, are quite distinct in their nature. The question, when the authority of Congress over the militia becomes exclusive, must essentially depend upon the fact, when they are to be deemed in the actual service of the United States. There is a clear distinction between calling forth the militia, and their being in actual service. These are not contemporaneous acts, nor necessarily identical in their constitutional bearings. The President is not commander-in-chief of the militia, except when in actual service; and not, when they are merely ordered into service. They are subjected to martial law only, when in actual service, and not merely when called forth, before they have obeyed the call. The act of 1795 and other acts on this subject manifestly contemplate and recognize this distinction. To bring the militia within the meaning of being in actual service, there must be an obedience to the call, and some acts of organization, mustering, rendezvous, or marching, done in obedience to the call, in the public service.1 § 1214. But whether the power is exclusive in Congress to punish delinquencies in not obeying the call on the militia, by their own courts-martial, has been a question much discussed, and upon which no inconsiderable contrariety of opinion has been expressed. That it may, by law, be made exclusive, is not denied. But if no such law be made, whether a State may not, by its own laws, constitute courts-martial to try and punish the delinquencies, and inflict the penalties prescribed by the act of Congress, has been the point in controversy. It is now settled that, under such circumstances, a State court-martial may constitutionally take cognizance of, and inflict the punishment. But a State cannot add to, or vary the punishments inflicted by the acts of Congress upon the delinquents.2 1 Houston v. Moore, 5 Wheat. R. 1, 17, 18, 20, 53, 60, 61, 63, 64; Rawle on Const. ch. 13, p. 159. 2 Houston v. Moore, 5 Wheat. R. 1, 2, 3, 24, 28, 44, 69 to 75; Rawle on Const. ch. (a) Luther v. Borden, 7 How. 1. § 1215. A question of another sort was also made during the late war with Great Britain; whether the militia, called into the actual service of the United States, were to be governed and commanded by any officer but of the same militia, except the President of the United States; in other words, whether the President could delegate any other officer of the regular army, of equal or superior rank, to command the militia in his absence. It was held in several of the eastern States, that the militia were exclusively under the command of their own officers, subject to the personal orders of the President; and that he could not authorize any officer of the army of the United States to command them in his absence, nor place them under the command of any such officer.1 This doctrine was deemed inadmissible by the functionaries of the United States. It has never yet been settled by any definite judgment of any tribunal competent to decide it. If, however, the doctrine can be maintained, it is obvious that the public service must be continually liable to very great embarrassments in all cases where the militia are called into the public service in connection with the regular troops. (a) 13, pp. 158, 159; Houston v. Moore, 3 Serg. & Rawle, 169; Duffield v. Smith, 3 Serg. & R. 590; 1 Kent's Comm. Lect. 12, pp. 248, 249, 250; Serg. on Const. ch. 28 [ch. 30]; Meade's Case, 5 Hall's Law Journ. 536; Bolton's Case, 3 Serg. & Rawle, 176, note. 18 Mass. Rep. Supp. 549, 550; 5 Hall's Amer. Law Journ. 495; 1 Kent's Comm. Lect. 12, pp. 244 to 247. 2 1 Kent's Comm. Lect. 12, pp. 244 to 247. (a) This doctrine may be considered as practically given up. See an account of the proceedings in the case of Massachusetts and Connecticut in Dwight's History of the Hartford Convention, pp. 249 et seq. During the late civil war, when State troops were called out, they came with the appropriate officers for the bodies called for, but were placed at once subject to the orders of some superior federal officer, and in no instance was there a refusal to obey orders on any such ground as was taken in 1812. CHAPTER XXIII. POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES. § 1216. 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 places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of FORTS, MAGAZINES, ARSENALS, DOCK-YARDS, and other needful BUILDINGS. § 1217. This clause was not in the original draft of the Constitution; but was referred to a committee, who reported in its favor; and it was adopted into the Constitution with a slight amendment, without any apparent objection.1 § 1218. The indispensable necessity of complete and exclusive power, on the part of the Congress, at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, and one might say of the world, by virtue of its general supremacy. Without it, not only the public authorities might be insulted, and their proceedings be interrupted with impunity; but the public archives might be in danger of violation and destruction, and a dependence of the members of the national government on the State authorities for protection in the discharge of their functions be created, which would bring on the national councils the imputation of being subjected to undue awe and influence, and might, in times of high excitement, expose their lives to jeopardy. It never could be safe to leave in possession of any State the exclusive power to decide, whether the functionaries of the national government should have the moral or physical power to perform their duties. 2 It might subject the favored State to the most unrelenting jeal 1 Journ. of Convention, 222, 260, 328, 329, 358. 2 The Federalist, No. 43; 2 Elliot's Debates, 92, 321, 322, 326. ousy of the other States, and introduce earnest controversies from time to time respecting the removal of the seat of government. § 1219. Nor can the cession be justly an object of jealousy to any State; or in the slightest degree impair its sovereignty. The ceded district is of a very narrow extent; and it rests in the option of the State whether it shall be made or not. There can be little doubt, that the inhabitants composing it would receive with thankfulness such a blessing, since their own importance would be thereby increased, their interests be subserved, and their rights be under the immediate protection of the representatives of the whole Union. It is not improbable, that an occurrence, at the very close of the revolutionary war, had a great effect in introducing this provision into the Constitution. At the period alluded to, the Congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. Congress applied to the executive authority of Pennsylvania for defence; but, under the ill-conceived constitution of the State at that time, the executive power was vested in a council consisting of thirteen members; and they possessed or exhibited so little energy, and such apparent intimidation, that Congress indignantly removed to New Jersey, whose inhabitants welcomed them with promises of defending them. Congress remained for some time at Princeton without being again insulted, till, for the sake of greater convenience, they adjourned to Annapolis. The general dissatisfaction with the proceedings of Pennsylvania, and the degrading spectacle of a fugitive Congress, were sufficiently striking to produce this remedy.2 Indeed, if such a lesson could have been lost upon the people, it would have been as humiliating to their intelligence, as it would have been offensive to their honor. § 1220. And yet this clause did not escape the common fate of most of the powers of the national government. It was represented as peculiarly dangerous. It may, it was said, become a sort of public sanctuary, with exclusive privileges and immunities of every sort. It may be the very spot for the establishment of tyranny, and of refuge of the oppressors of the people. The inhabitants will be answerable to no laws, except those of Congress. A powerful army may be here kept on foot; and the 1 The Federalist, No. 43; 2 Elliot's Deb. 92, 321, 322, 326, 327. 66 most oppressive and sanguinary laws may be passed to govern the district. Nay, at the distance of fourteen years after the Constitution had quietly gone into operation, and this power had been acted upon with a moderation as commendable as it ought to be satisfactory, a learned commentator expressed regret at the extent of the power, and intimated in no inexplicit terms his fears for the future. A system of laws," says he, "incompatible with the nature and principles of a representative democracy, though not likely to be introduced at once, may be matured by degrees, and diffuse its influence through the States, and finally lay the foundation of the most important changes in the nature of the federal government. Let foreigners be enabled to hold. lands, and transmit them by inheritance, or devise; let the preference to males, and the rights of primogeniture be revived with the doctrine of entails; and aristocracy will neither want a ladder to climb by, nor a base for its support. " 2 § 1221. What a superstructure to be erected on such a narrow foundation! Several of the States now permit foreigners to hold and transmit lands; and yet their liberties are not overwhelmed. The whole South, before the revolution, allowed and cherished the system of primogeniture; and yet they possessed, and transmitted to their children their colonial rights and privileges, and achieved under this very system the independence of the country. The system of entails is still the law of several of the States; and yet no danger has yet assailed them. They possess and enjoy the fruits of republican industry and frugality, without any landed or other aristocracy. And yet the petty district of ten miles square is to overrule in its policy and legislation all that is venerable and admirable in State legislation. The States and the people of the States are represented in Congress. The district has no representatives there; but is subjected to the exclusive legislation of the former. And yet Congress, at home republican, will here nourish aristocracy. The States will here lay the foundation for the destruction of their own institutions, rights, and sovereignty. At home, they will follow the legisla 1 2 Elliot's Debates, 320, 321, 323, 324, 325, 326; Id. 115. Amendments limiting the power of Congress to such regulations, as respect the police and good government of the district, were proposed by several of the States at the time of the adoption of the Constitution. But they have been silently abandoned. 1 Tuck. Black. Comm. App. 276, 374. 21 Tuck. Black. Comm. App. 277. |