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CHAPTER XXI.

Power over Militia.

§ 134. The next power of Congress is, 'to provide for calling forth the Militia to execute the laws of the Union, 'suppress insurrections, and repel invasions.' This is a natural incident to the duty, devolved on the General Government, of superintending the common defence, and general welfare. There is but one of two alternatives, which can be resorted to in cases of insurrections, invasions, or violent oppositions to the execution of the laws; either to employ regular troops, or to employ the militia. In ordinary cases of riots and public disturbances, the magistracy of the country, with the assistance of the civil officers, and private individuals, may be sufficient to restore the public peace. But when force is contemplated by a discontented and lawless faction, it is manifest, that it must be met, and overthrown by force. Among a free people there is a strong objection to the keeping up of a large standing army. But this will be indispensable, unless the power is delegated to command the sevices of the militia in such exigencies. The latter is, therefore, conferred on Congress, because it is the most safe, and the least obnoxious to popular jealousy. The employment of the militia is economical, and will generally he found to be efficient, in suppressing sudden and transitory insurrections, and invasions, and resistances of the laws.

135. The next power of Congress, is to provide for 'or'ganizing, arming, and disciplining the militia, and for gov'erning such part of them, as may be employed in the ser

vice of the United States; reserving to the States, respec

tively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed .by Congress.' And here, again, we have another instance of the distribution of powers, between the National and State

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Governments over the same subject matter. Unless there is uniformity in the organization, arming, and disciplining of the militia, there can be little chance of any energy, or harmony of action, between the corps of militia of different States, when called into the public service. Uniformity can alone be prescribed by the General Government, and the power is accordingly given to it. On the other hand, as a complete control of the militia, by the General Government would deprive the States of their natural means of military defence, even upon the most urgent occasions, and would leave them absolutely dependent upon the General Government, the power of the latter is limited to a few cases; and the former retain the appointment of all the officers, and also the authority to train the militia, according to the discipline prescribed by Congress. With these limitations, the authority of Congress would seem above all reasonable objections.

CHAPTER XXII.

Seat of Government, and other Ceded Places.

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$ 136. The next power of Congress is, 'to exercise exclusive legislation, in all cases whatsoever, over such Dis'trict, 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.'

$ 137. A moment's consideration will establish the importance and necessity of this power. Without it, the National Government would have no adequate means to enforce its authority in the place in which its public functionaries should

be convened. They might be insulted, and their proceedings interrupted with impunity. And if the State should array itself in hostility to the proceedings of the National Government, the latter might be driven to seek another asy. lum, or be compelled to an humiliating submission. It never could be safe, to leave in the possession of any one State the exclusive power to decide, whether the functionaries of the National Government should have the moral or physical power to perform their duties. Nor let it be thought, that the evil is wholly imaginary. It actually occurred to the Continental Congress, at the very close of the Revolution, who were compelled to quit Philadelphia, and adjourn to Princeton, to escape from the violence of some insolent mutineers.

$ 138. It is under this clause, that the cession of the present District of Columbia was made by the States of Maryland and Virginia ; and, the present Seat of the National Government was established at the city of Washington. That convenient spot was selected by the exalted patriot, whose name it bears, for this very purpose. And who, that loves his country, does not desire, that it may forever remain a monument of his wisdom, and the eternal Capitol of the Republic ?

$ 139. The other clause, as to cessions for forts, magazines, arsenals, dock-yards, and other needful buildings, is dictated by a like policy. The public money expended on such places, the public property deposited there, the military, and other duties to be executed there, all require, that the sovereignty of the United States should have exclusive jurisdiction and control over them. It would be wholly improper, that such places, on which the security of the Union may materially depend, should be subjected to the authority of any single member of it. In order to guard against any possible abuse, the consent of the State Legislature is necessary to divest its own territorial jurisdiction; and, of course, that consent will never be given, unless the public good will be manifestly promoted by the cession.

CHAPTER XXIII.

General Power to make Necessary and Proper Laws.

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$ 140. The next power of Congress is, '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.'

$ 141. This clause is merely declaratory of a truth, which would have resulted by necessary implication from the act of establishing a National Government, and investing it with certain powers. If a power to do a thing is given, it includes the use of the means, necessary and proper to execute it. If it includes any such means, it includes all such means; for none can more correctly, than others, be said to appertain to the power; and the choice must depend upon circumstances, to be judged of by Congress. If it should be asked, why, then, it was inserted in the Constitution ; the answer is, that it is peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. There was also a clause in the articles of confederation, which restrained the authority of Congress to powers expressly granted; and, therefore, it was highly expedient to make an explicit declaration, that that rule of interpretation, which had been the source of endless embarrassments, should no longer prevail. The Continental Congress had been compelled in numerous instances to disregard that limitation, in order to escape from the most absurd and distressing consequences. They had been driven to the dangerous experiment of violating the confederation, in order to preserve it.

§ 142. The plain import of the present clause is, that Congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution the other express powers; not merely such as are indispensably neces

sary in the strictest sense, (for then the word 'proper' ought to have been omitted) but such also as are appropriate to the end required. Indeed, it would otherwise be difficult to give any rational interpretation to the clause; for it can scarcely be affirmed, that one means only exists to carry into effect any of the given powers; and if more than one should exist, then neither could be adopted, because neither could be shown to be indispensably necessary. The clause in its just sense, then, does not enlarge any other power specifically granted; nor is it the grant of any new power. It is merely a declaration to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution. The very controversies, which have since arisen, and the efforts, which have since been made, to narrow down the just interpretation of the clause, demonstrate its wisdom and propriety. The practice of the Government, too, has been in conformity to this view of the matter. There is scarcely a law of Congress, which does not include the exercise of implied powers and means. This might be illustrated by abundant examples. Under the power to establish post offices and post roads,’ Congress have proceeded to make contracts for the carriage of the mail, have punished offences against the establishment, and have made an infinite variety of subordinate provisions, not one of which is expressly found authorized in the Constitution. A still more striking case of implied power is, that the United States, as a Government, have no express authority to make contracts; and yet it is plain, that the Government could not go on for an hour without it.

§ 143. And here terminates the eighth section of the Constitution professing to enumerate the powers of Congress. But there are other clauses, delegating express powers, which, though detached from their natural connexion in that instrument, should be here brought under review, in order to complete the enumeration.

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