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§ 456. Congress, so the constitution proceeds to say, has power to "raise and support armies; but no appropriation of money to that use shall be for a longer

Power to raise and


tains rais

ing of standing army and conscription.

armies sus- term than two years." The object of the last quali fication is to place the sustenance of a standing army directly under the control of the people, preventing any one congress from making the army, by a long appropriation, independent of the action of the congress next succeeding. The power itself is unrestricted, except by this clause. Congress can direct the raising and support of a standing army, either permanent or temporary, of any size, and may take all necessary measures to obtain for such armies the services of men and ammunition. For this purpose a conscription may be directed and enforced,' and minors can be enlisted, even without the assent of their parents or guar dians. What has been said with regard to the army applies also to the navy, which congress, under the constitution, may "provide and maintain."

be called

out by general


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§ 457. Congress, under the fifteenth clause of the same section, may "provide for calling forth the militia, Militia may to execute the laws of the Union, suppress insurrections, and repel invasions." The militia consists of govern- forces organized by the states, and is under state jurisdiction, so far as concerns its direction, until called into the service of the United States. When the power to call forth the militia is vested in the president, he may make the call either on the executives of the particular states, or on the militia officers directly. He is the exclusive judge of the question whether the call should be made, and

Kneedler v. Lane, 45 Penn. St. 238; see discussion of this remarkable case in Pomeroy's Const. Law, § 477. This was held to be so under the constitution of the Confederate States, though that constitution was based on an avowedly narrower system of governmental powers than was the constitution of the United States; Barber v.

Irwin, 34 Ga. 27; Tate, ex parte, 39 Ala. 264; Coupland, ex parte, 26 Tex. 386. As to the controversies on this point see supra, §§ 389, 390.

Browne, ex parte, 5 Cranch C. C. 554; U. S. v. Bainbridge, 1 Mason, 71 ; but see Barrett, in re, 42 Barb. 479; Wh. Cr. Law, 8th ed., § 267. 3 Const., art. I., § 8, cl. 13.

when the call is made, obedience is imperative.' Power is further given to congress 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.'


States subordinated in this re

pect to


§ 458. It will be seen from the above provisions that the states, even in respect to the command of the militia, are subordinated to the United States, and that the command of the militia, when called out, as well as the authority to make the call, is vested under con- Cuited gress in the president. This supremacy of the United States is sustained by other provisions. No state, for instance, can, without the consent of congress, keep troops or ships of war in time of peace, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. The states, also, are prohibited from entering into any treaty, alliance, or confederation, or granting letters of marque and reprisal.'

rules for

regulation of army and cannot

navy, but



459. By the fourteenth clause of the same article, congress "may make rules for the government and regulation Congress of the land and naval forces." Congress, however, may make cannot in this respect invade the prerogatives vested by the constitution in the president of the United States as commander-in-chief. The military law thus imposed regulates the army and navy, as well as the territory which they may conquer, or dominate until the civil courts are restored; while martial law is the law which determines offences by officers of army and navy, or by persons arrested as offending against the general laws of war. Military law, in other words, is the law imposed for the government of the seat of war; martial law is the law adopted by belligerent forces for their own govern

1 Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat. 19.

2 Const., art. I., § 8, cl. 16.

3 Const., art. I., § 10, cl. 3; see supra, §§ 389, 390.


Const., art. I., § 10, cl. 1.

5 Bogart, in re, 2 Sawy. 396; Martin v. Mott, 12 Wheat. 19.

6 Supra, §§ 38, 212.
1: Supra, § 37,

ment. But congress, while it can establish a provisional military government in a conquered territory until civil govern ment is established or restored, cannot constitutionally supersede civil courts by military in any part of the United States, The members of a court martial, it should be added, are liable in civil suits for damages to parties whom they may illegally imprison, or otherwise materially prejudice.3


In district and ceded places, congress has exclusive jurisdiction.


§ 461. Congress, by the seventeenth clause of the eighth section of the first article, has power "to exercise exclusive legislation in all cases whatsoever, over such district, not exceeding ten miles square, as may by the 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 state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.' Over the District of Columbia congress took control immediately on the cession of the site by the states of Maryland and Virginia, such control being subject only to the constitution of the United States. The case is exceptional, like that of the territories. The states, after such cession, cease to have jurisdiction over the territory ceded. But mere occupation by the United States, without express cession, does not give jurisdiction."

See Wh. Cr. Pl. & Pr., § 979, note, and see, supra, §§ 37–8.

5 Loughborough v. Blake, 5 Wheat. 317; Cohens v. Virginia, 6 Wheat. 264.

2 Milligan, ex parte, 4 Wall. 2, 129; The portion of the District of Columbia see infra, §§ 579, 593.

Milligan v. Hovey, 3 Biss. 13. That military tribunals may take cognizance of offences on the field of war when there are no civil courts in operation, see Coleman v. Tennessee, 97 U. S. 509.

U. S. v. Hall, 98 U. S. 343.

ceded by Virginia has been by act of congress given back to Virginia.

6 U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Cornell, 2 Mason, 60; Com. v. Clary, 8 Mass. 72; U. S. v. Davis, 5 Mason, 356.

7 U. S. v. Ames, 1 Wood. & Minot, 76; People v. Godfrey, 17 Johns. 225.


holds terri

tories in


§ 462. By the third section of the fourth article of the constitution, it is provided that "New states may be admitted by the congress into this union; but no state shall be formed or created within the jurisdiction of any other state; nor any state formed by the junction of any two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress. The congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claim of the United States or of any particular state." The vagueness of this clause is an illustration of the position, elsewhere discussed at large, that the institutions of a people spring not from their legislators, but from themselves. The territorial growth of the United States, so far from being expected by those who formally framed the constitution, was not even provided for by them as a contingency. Three-fourths of our country, as it now exists, was not included in the original confederacy of states; yet it is to that original confederacy alone that the constitution formally applies. Our territorial system in its present shape is the product of popular evolution, not of governmental dictation.2 It was the discursive energy of the people overflowing into unoccupied fields, not legislation, that was the primary cause of the creation of one class of our western states; it was not war nor treaty, but the instinctive ascendency of the AngloSaxon race, coupled with the same pioneer impulse, that was the primary cause of the admission into the Union of Texas and of the states on the Pacific. The framers of the constitution neither conceived nor provided for any such enlargement of domain. Viewing the constitution critically, the right to annex new territory can only be with difficulty inferred from the treaty-making and war powers given to the general government; and it was for this reason that not only did leading federalists deny the constitutionality of the pur

1 Supra, §§ 19, 360 et seq. That "territory" is not included under term "state," see supra, § 375.

2 Supra, § 19.
3 See supra, § 364.

chase of Louisiana, but Mr. Jefferson thought that an amendment to the constitution would be required to sanction this purchase. It is true that it is hard to conceive of a treaty for the purpose of settling territorial controversies between nations which may not involve the cession or acceptance of territory; yet, in a constitution which undertook to confer only specified powers on the general government, it would be supposed that, if it were intended to permit that government to annex vast domains equal to its prior possessions, the power would have been expressed. The annexations of Louisiana, of Florida, of Texas, of the Pacific coast were political necessities; yet so little was this foreseen by the framers of the constitution that it was only to a happy vagueness in the clause before us that it was possible for these annexations to take place without amendments by the attempts to pass which the country might have been convulsed. The same vagueness applies to the expressions more particularly relating to the territories then belonging to the United States. There are no specific limitations applied to these territories. It is only by inference from this and other clauses that we learn to regard them as incipient or embryo states, and to be held, while in the territorial condition, in trust for the whole United States.1

Title to

such terri

ries in the


§ 463. There are two aspects in which the territories are to be viewed: 1st. As to the title to the land inclosed the land of within their boundaries; 2d. As to its political control. As to the first, it has never been questioned that congress has the right not only to dispose of the title to such land to settlers, but to grant it as bounties to soldiers, and as endowment to railroad corporations whose roads are to penetrate and enrich the territory.2


1 See Dred Scott v. Sandford, 19 ment, see Am. Ins. Co. v. Canter, 1 How. 393, discussed infra, § 464.

That congress has the right to acquire new territory by treaty was affirmed in Am. Ins. Co. v. Canter, 1 Pet. 511; Dred Scott v. Sandford, 19 How. 393...That the people of the territories are not of right entitled to self-govern

Pet. 511; Territory v. Lee, 2 Montana, 124; Reynolds v. People, 1 Col. 179. As to treaties, see supra, § 383, infra, § 506.

2 See U. S. v. Gratiot, 14 Pet. 526. That the United States government has supreme authority over Indian reservation, see supra, §§ 265, 434.

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