corps every six months, and are to govern as well the militia in service as the regulars, but the militia are to be tried by their own officers.

§ 198. Whatever crimes are committed on board of public ships of war of the United States, whether in port or at sea, are exclusively cognizable and punishable by the government of the United States.1 The public ships of sovereigns, wherever they may be, are deemed to be extra-territorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign.2

§ 199. Clause 14th. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions:

Clause 15th. 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:

§ 200. Upon these two provisions, and a subsequent one, that the President shall be commander-in-chief of the militia when called into actual service, rest the whole power of the national government over the militia. Upon two occasions only has the power to "call forth the militia to execute the laws, suppress insurrections, and repel invasions," been exercised,-one the insurrection in Pennsylvania in 1794, the other to repel the invasion of the enemy during the war of 1812. Some serious questions have arisen under this power. In consequence of a requisition made by President Madison on the governors of Massachusetts and Connecticut for their quotas of militia, a question arose between the general and state governments in relation to this power. In that and following discussions, these questions were made:

1 United States vs. Bevans, 3 Wheaton, 336.

s Idem.

1. Who is to determine when the exigency pointed out by the Constitution has happened?

2. Whether the President can place the militia under the command of any one but himself?

3. Whether he can detach parts of the militia corps? § 201. On the first question, the governors of Connecticut, Massachusetts, and Rhode Island, with the Supreme Court of Massachusetts, held' that the governors of the states were to judge when the exigency contemplated by the Constitution had happened. This doctrine, however, was denied by President Madison in his Message to Congress, and the question has since been solemnly settled by the Supreme Court of the United States. It was then settled that the authority to decide belongs exclusively to the President. The act of 1795, providing for the mode of calling out the militia, was 'framed on this principle. The law contemplates that, in certain exigencies, orders shall be given to carry the powers into effect, and no person can have a right to disobey them. No provision is made for an appeal from, or review of, the President's opinion. And whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the general rule of construction is, that he is thereby constituted the sole and exclusive judge of the existence of those facts.3

§ 202. The power to govern the militia, when in the service of the United States, is an exclusive one; for any such power concurrent in other authorities would destroy all unity of action and command.

§ 203. There is nothing in the Constitution to prohibit a state from calling forth its own militia to assist the United States, when that militia is not in the service of the United States, to suppress insurrections and repel invasions. Such a concurrent exercise of power 1 Martin vs. Mott; 12 Wheaton's Rep. 30, 31. 1 Kent's Com. 245, 246.

3 12 Wheaton, 19, 31, 32.

does not interfere with, or obstruct the exercise of, the powers of the Union.

§ 204. Upon the questions whether the President can delegate his authority, or detach parts of the militia corps, different opinions have been advanced by the state and national authorities. Thus, Connecticut and Massachusetts, during the war, asserted that he could not; President Madison, that he could. The latter seems the general opinion, and is certainly most conso

nant to reason.

§ 205. By the act of May, 1792, Congress provided for the organization, arming, and disciplining of the militia. By that act, directions were given as to the mode in which the President was to give his orders; and refusal or neglect to obey them was declared a public offence, and the mode of trial, by court-martial, was pointed out. In relation to this act, the Supreme Court have decided,' that the militia, when called into actual service, were not to be considered in that service, or as national militia, till they were mustered at the place of rendezvous; and that until then, the state retained a right, concurrent with the government of the United States, to punish their delinquency. If the militia, when called into the service of the United States, refuse to obey the order, they remain within the military control of the state, and it is competent for the state to provide for trying and punishing them by a state courtmartial.

§ 206. In addition to the act of 1792, Congress have passed several other acts upon this subject. In February, 1795, a law was passed, calling forth the militia, in contemplation of the well-known Whiskey Insurrec tion. In May, 1820, they passed an act providing that the system of discipline observed by the militia through out the United States should be the same as observed by the regular army.

1 Huston vs. Moore; 5 Wheat. Rep. 1.

§ 207. A court-martial that imposes a fine upon a man not liable to militia duty are tresspassers, as well as the officer who distrains for such fine.1

§ 208. Clause 16. 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 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; And

Clause 17. 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 in any department or officer thereof.

§ 209. In pursuance of the power to exercise exclusive jurisdiction, &c. &c., Congress, in July, 1790, accepted of a grant from Virginia and Maryland, of ten miles square, on the Potomac, for the seat of government, which is the present District of Columbia. Over this territory Congress have exclusive jurisdiction, and exercise all legislative powers.

§ 210. The jurisdiction over various other sites, as West Point, &c., has been granted by the Legislatures of the respective states in which they lie, for military and naval purposes.

§ 211. The power to exercise exclusive jurisdiction includes the power to tax.2

§ 212. Congress have the power of general as well as local jurisdiction, in reference to acts committed within that jurisdiction."

§ 213. The states cannot take cognizance of any acts done in the ceded place after the cession; and, on the 25 Wheaton's Rep. 317.

1 3 Cranch, 331.

31 Kent's Comm. 403; 6 Wheaton, 426.

other hand, the inhabitants of those places cease to be inhabitants of the states, and can no longer exercise any political rights under the laws of the state.'

But there is commonly reserved by the states a right of executing criminal process within the limits of ceded places, and this may be exercised in perfect consistency with the right of jurisdiction on the part of the United States.

$214. The clause giving Congress power to make all laws which shall be necessary and proper to carry the foregoing into execution, has given rise to more diversity of sentiment, discussion, and controversy than any other in the Constitution. The reason is obvious; about the direct provisions of that instrument, men of ordinary comprehension could have but little difference of opinion; but as to what is necessary and proper, different men might form very different judgments: so it happened; the Constitution had scarcely gone into operation under the administration of Washington, when a radical difference of opinion arose, in relation to the charter of the United States Bank.

§ 215. In 1791, the Secretary of the Treasury recommended the establishment of a National Bank, as necessary to the proper administration of the financial concerns of the nation. A bill for that purpose was introduced into the House of Representatives, and warmly opposed on constitutional grounds. Mr. Giles, Mr. Madison, and Mr. Jackson, of Georgia, were among the opponents of the measure, and Mr. Ames, Mr. Boudinot, and Mr. Gerry, among its advocates. The former denied its constitutionality, on the ground that Congress could not exercise any powers not expressly granted,— that no power was anywhere given to charter a bank, -and that, if such implied powers were exercised, there would be no limits to the powers of the general government.2 Their opponents contended that Con

13 Story's Comm. 103; 8 Masach. 72.

2 Elliott's Debates, vol. 4.