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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." 1 But though the States have the appointment of the officers, the bodies of militia called into the service of the United States are subject not only to the orders of the President as commander-in-chief, but also to those of any officer outranking their own, who may, under the authority of the commander-in-chief, be placed over them. An army obtained by conscription is not the militia, though conscripted from it.2

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State Power Subordinate. - The intent of the foregoing provisions is to render the federal government supreme in all that pertains to war, with subordinate authority in the States. This is made more apparent by a subsequent provision that no State shall enter into any treaty, alliance, or confederation, or grant letters of marque and reprisal; and by still another, which declares that no State without the consent of Congress shall keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. By troops here are meant a standing force, in distinction to the militia which the States are expected to enrol, officer, equip, and instruct. The agreements and compacts which may be entered into with the consent of Congress differ from the treaties, alliances, and confederations which are absolutely forbidden, in this: that the latter are made for perpetuity or for a considerable time, and generally have successive execution, while the former are made for temporary purposes, and are per

1 Const., Art. I. § 8, cl. 16.

2 See the discussion in Kneedler v. Lane, 45 Penn. St. 238.

3 Const., Art. I. § 10, cl. 1.

4 Const., Art. I. § 10, cl. 3.

5 See Luther v. Borden, 7 How. 1.

fected in their execution once for all.1 An attempt by a State to deliver a fugitive from justice to a foreign sovereignty, in response to a demand therefor, would be an attempt to perfect and perform an agreement, and is therefore unauthorized.2

SECTION XIII. CEDED DISTRICTS.

The Constitution. - Congress is further empowered "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."

District of Columbia. The cession contemplated by this clause was afterwards made by the legislatures of Maryland and Virginia, and Congress, as the legislature of the Union, assumed the exercise of exclusive legislation over it, but creating municipal governments with limited powers. This exclusive legislation over people who have no voice in the selection of legislators is inconsistent with the right of self-government, on the recognition of which American institutions rest, and, like the control over territories, must be regarded as one of the necessary exceptions to which, in their application, such general principles are subject. In respect to a portion of this territory Congress has relinquished its jurisdiction by retroceding it to Virginia, and for a time it gave to the remainder a territorial government. But the power in Congress thus

1 Holmes v. Jennison, 14 Pet. 540, 572.

2 Holmes v. Jennison, 14 Pet. 540.

3 Const., Art. I. § 8, cl. 17.

4 Cohens v. Virginia, 6 Wheat. 264, 424.
5 Loughborough v. Blake, 5 Wheat. 317, 322.

to delegate its general legislative authority has been denied, with much apparent reason.1

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Exclusive Jurisdiction. - A power of exclusive legislation carries with it exclusive jurisdiction, and therefore the States cannot take cognizance of acts done in places thus acquired by the United States, 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 state jurisdiction is not excluded over territory held or acquired by the United States without the consent of the State within which it lies.*

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Punishment.-Congress is further empowered "to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." 5 By this last clause the cruel feature of the old law, which punished the traitor in the persons of his descendants, was forever precluded.

SECTION XV. —NON-ENUMERATED AND IMPLIED POWERS.

General Powers. - Congress is further empowered "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other

1 Roach v. Van Riswick, Sup. Ct. Dist. Columbia, 20 Alb. Law Jour. 433.

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

3 Commonwealth v. Clary, 8 Mass. 72; Sinks v. Reese, 19 Ohio,

N. S. 306.

4 People v. Godfrey, 17 Johns. 225.

5 Const., Art. III. § 3. See United States v. Greathouse, 2 Abb. U. S. 364; Bigelow v. Forrest, 9 Wall. 339; Miller v. United States, 11 Wall. 268.

6 Forfeiture, except during the life of the person attainted, was abolished in England by Stat. 3 & 4 Wm. IV. c. 106.

powers vested by this Constitution in the government of the United States, or in any department or officer thereof." 1 The import of the clause is, that Congress shall have all the incidental and instrumental powers necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically given, nor is it a grant of any new power to Congress, but it is merely a declaration, for the removal of all uncertainty, that the means for carrying into execution those otherwise granted are included in the grant. The grant of the principal must include the necessary and proper incidents without which the grant would be ineffectual. It would be as undesirable as it would be impracticable to enumerate all the means by the use of which the powers expressly conferred shall be exercised, since what may be suitable and proper means at one period may be wholly unsuitable and ineffectual at another period, under conditions which had not been anticipated, and thus the iron rule of limitation to means specified would defeat the grant itself. The clause above recited distinctly negatives any suggestion that so unwise and impracticable a restriction was intended. Those who made the Constitution, conferred upon the government of their creation sovereign powers; they prescribed for it a sphere of action, limited, indeed, as respects subjects and purposes, but within which it should move with supreme authority, untrammelled except by the restraints which were expressly imposed, or which were implied in the continued existence of the States and of free institutions. But there cannot be such a thing as a sovereign without a choice of the means by which to exercise sovereign powers.

In any particular in which the powers of the United States are contemplated, the necessity for the exercise of incidental powers is apparent. Congress, as a means to 1 Const., Art. I. § 8, cl. 18. 2 Story on Const., § 1243.

the collection of its revenues, provides for the seizure, sale, or confiscation of property; in its regulation of commerce, builds light-houses and removes obstructions from harbors; in establishing post-offices, prescribes the rates of postage, provides for the appointment of postmasters and other agents, for the free delivery of postal matter, and for the sale and payment of postal money orders, &c. But whatever may be the power it exercises in these and other cases, it must provide against its being rendered nugatory, and its purpose thwarted, by enacting laws for the punishment of those who commit acts which tend to obstruct, defeat, or impair the force of their due execution, or who neglect duties essential to the accomplishment of the ends designed.1 Without these and similar incidental powers, the government would be as completely without the means of perpetuating its existence as was the Confederation itself.

The necessity that shall justify the making of particular laws is not an absolute necessity, but Congress may make any law, not by the Constitution expressly or impliedly prohibited, which it shall deem conducive to the execution of any express power.2 It may therefore charter a national bank as a necessary and useful instrument in the fiscal operations of the government. It may give a preference to the demands of the United States in case of insolvent estates. It may provide for the punishment of acts which interfere with, obstruct, or prevent navigation, though done on land." And Congress is of necessity the exclusive

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1 United States v. Bevans, 3 Wheat. 336.

2 Legal Tender Cases, 12 Wall. 457, 539; Martin v. Hunter, 1 Wheat. 304.

8 McCulloch v. Maryland, 4 Wheat. 316, 413; Osborn v. United States Bank, 9 Wheat. 738.

4 United States v. Fisher, 2 Cranch, 358.

5 United States v. Coombs, 12 Pet. 72.

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