12 To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

The power to "raise and support armies" includes all the means by which armies can be raised, by compulsory draft as well as by voluntary enlistment. Each individual can be required to perform military duty without his consent if the demand is made by a proper exercise of the national will; 2 and Congress may enact that a person shall be deemed in the military service from the time of the draft. In authorizing a national conscription, the Constitution ignores the State governments, and any aid rendered by them would be simply as volunteers, the power to raise and support armies being exclusive in Congress; 5 but where an act of Congress provides for a draft of men into the army a State may give a bounty to those who volunteer.6 Congress may make such orders and regulations as may be necessary to prevent an evasion of duty by those liable to military service.7 The State power over the militia is subordinate to the power of Congress to raise armies out of the population that constitutes it.8 Congress has a constitutional power to enlist minors in the army and navy without the consent of their parents,9 and State courts cannot discharge from enlistments under habeas corpus, 10 but State courts may discharge on habeas corpus persons enlisted contrary to acts of Congress. 11 This constitutional power includes the power to provide necessary officers, equipments, and supplies, and to establish military academies.12

1 Kneedler v. Lane, 45 Pa. St. 238; In re Griner, 23 Wis. 423. And see Ex parte Coupland, 26 Tex. 386.

2 U. S. v. Bainbridge, 1 Mason. 71; Ex parte Coupland, 26 Tex. 394. 3 Kneedler v. Lane, 45 Pa. St. 238.

4 Booth v. Woodbury, 32 Conn. 118. 5 Ferguson v. Landram, 1 Bush, 548.

6 Booth v. Woodbury, 32 Conn. 118; Taylor v. Thompson, 42 Ga. 9; Coffman v. Keightly, 24 Ind. 509; Board v. Bearse, 25 Ind. 110; Winchester v. Corinna, 55 Me. 9; Wilson v. Burkman, 13 Minn. 441; Comer v. Folsom, 13 Minn. 219; State v. Demarest, 32 N. J. 528; State v. Jackson, 31 N. J. 189; Speer v. Directors, 50 Pa. St. 150; Ahl v. Gleim, 52 Pa. St. 324.

7 Allen v. Colby, 45 N. H. 544.

8 Kneedler v. Lane, 45 Pa. St. 238.

9 Ex parte Brown, 5 Cranch C. C. 554; U. S. v. Stewart, Crabbe, 205; Commonwealth v. Murray, 4 Binn. 487; Commonwealth v. Barker, 5 Binn. 423; Case of Roberts, 2 Hall L. J. 192; Shirk's Case, 20 Leg. Int. 260; U. S. v. Bainbridge, 1 Mason, 71; Commonwealth v. Gamble, 11 Serg. & R. 94. But see U. S. v. Wright, 5 Phila. 296; Henderson's Case, 50 Leg. Int. 187; U. S. v. Rhodes, 10 Abb. U. S. 43.

10 Tarble's Case, 13 Wall. 397; Matter of Farrand, 1 Abb. U. S. 146; In re Keeler, Hemp. 306; In re Veremaitre, 9 N. Y. Leg. Obs. 129; In re Sifford, 5 Am. Law Reg. 659; In re McDonald, 9 Ibid. 661.

11 In re Dobb, 9 Am. L. R. 565; Ex parte McDonald, Ibid. 662; In re Wilson, 18 Leg. Int. 316; Comm. v. Carter, 20 Ibid. 21; In re Henderson, Ibid. 181; U. S. v. Wright, Ibid. 21; In re Follis, 19 Leg. Int. 276; In re McCall, Ibid. 108; U. S. v. Taylor, 20 Leg. Int. 284; In re Hicks, 11 Pitts. L. J. 25; In re Webb, 10 Pitts. L. J. 106; Comm. r. Rogers, Ibid. 178; In re Barrett, 12 Pitts. L. J. 90; In re Stevens, 24 Law Rep. 205; Comm. v. Wright, 3 Grant, 437. Contra, In re Phelan, 9 Abb. Pr. 286; Spangle's Case, 11 Am. L. R. 596; In re Jordan, Ibid. 749; In re Shirk, 3 Grant, 460.

12 U. S. v. Rhodes, 1 Abb. U. S. 50.

18 To provide and maintain a navy ;

This grant of power authorizes the Government to buy or build vessels of war, man, arm, and prepare them, and to establish naval academies,1 and to provide for punishment for desertion and other crimes, and make all needful rules for the government of the navy.2 Public ships of sovereigns are deemed extra-territorial, and not subject to the local jurisdiction.

1 U. S. v. Bevans, 3 Wheat. 337, U. S. v. Rhodes, 1 Abb. U. S. 50. 2 Dynes v. Hoover, 20 How. 65.

3 U. S. v. Bevans, 3 Wheat. 390; The Exchange, 7 Cranch, 116.

14 To make rules for the government and regulation of the land and naval forces.

Congress may provide for the trial and punishment of military and naval offenses by courts-martial, without reference to the judicial powers of Government.

Dynes v. Hoover, 20 How. 65; In re Bogart, 2 Sawy. 396.

15 To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;

The power to call out the militia is limited to three purposes. Such authority implies no prohibition to employ the army and navy for the same purposes, nor that the militia cannot be used for the suppression of a rebellion as well as an insurrection. This power is a continuation of the powers enumerated, and a subsidiary grant to the power to declare war, maintain armies and navies, and provide for the common defense. The power to repel includes the power to provide against the attempt or danger of invasion; it is to be exercised in sudden emergencies, and under circumstances vital to the exist

ence of the Union.5 The President is the exclusive and final judge whether the exigency has arisen, and Congress may delegate him to call out the militia, and make his decision as to the necessity conclusive.7 The President may make his request direct to the executive of the State, or by order directed to any subordinate officer of the State militia. Congress may make laws to enforce the call and may inflict penalties for disobedience, and erect courts for the trial of offenders, 9 but cannot subject State militia to martial law unless in the actual service of the Government.10 It may fix the period at which the militia enter into service of the United States, and change their character from State to National militia.11 A State may make a law providing for the punishment for neglect to obey an order calling forth the militia.12 When called out and mustered into the service, they become National militia. 13 The States have concurrent power to call out the militia to aid the General Government, and in certain emergencies to raise troops to suppress insurrection. 15 The authority to suppress rebellion is found in the power to suppress insurrection and carry on war.16 When a rebellious State is subdued, Congress has the right to determine and fix the conditions of returning peace. 17

4

1 Kneedler v. Lane, 45 Pa. St. 238.

2 Texas v. White, 7 Wall. 700; Metropolitan Bank v. Van Dyke, 27 N. Y. 400; Kneedler v. Lane, 45 Pa. St. 238.

3 Kneedler v. Lane, 45 Pa. St. 238.

4 Martin v. Mott, 12 Wheat. 19.

5 Luther v. Borden, 7 How. 18.

6 Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 18; Vanderheyden v. Young, 11 Johns. 150; Duffield v. Smith, 3 Serg. & R. 590. 7 Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 18.

8 Houston v. Moore, 5 Wheat. 15; 3 Serg. & R. 169.

9 Commonwealth v. Irish, 3 Serg. & R. 176.

10 Mills v. Martin, 19 Johns. 7.

11 Houston v. Moore, 5 Wheat. 15; 3 Serg. & R. 169.

12 Houston v. Moore, 5 Wheat. 15; 3 Serg. &. R. 169.

13 Houston v. Moore, 5 Wheat. 15; 3 Serg. & R. 169; Martin v. Mott, 12 Wheat. 19.

14 Houston v. Moore, 5 Wheat. 15; 3 Serg. & R. 169.

15 Luther v. Borden, 7 How. 1.

16 Texas v. White, 7 Wall. 701; Tyler v. Defrees, 11 Wall. 331.

17 Jacoway v. Denton, 25 Ark. 625; Shorter v. Cobb. 39 Ga. 285.

16 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;

The government of the militia, when in actual service, is distinct from the power of calling them out.1 Organiz ing includes the power of determining who shall compose the body of the militia, and the power to fix the age necessary to render competent.2 After the militia has entered into the service of the United States, the authority of the General Government is exclusive, and so far as Congress has provided for their organization, the power of the State is excluded; but if Congress neglect to exercise this power, States have a concurrent authority to do so,5 and so long as the militia are acting under the military jurisdiction of the State to which they belong, the powers over them are concurrent in the General and State governments; but the State law is subordinate to the paramount law of the General Government on the same subject.6 Where a State law is to operate on the militia before they are in actual service, it is valid if it does not conflict with the law of Congress. The power of Congress is unlimited, except in officering and training the militia. The President must exercise his command of the militia through officers duly appointed. See Supplement, post, 301.

1 Houston v. Moore, 5 Wheat. 1; 3 Serg. & R. 169.

2 Opinions of Justices, 80 Mass. 548.

3 Houston v. Moore, 5 Wheat. 1; 3 Serg. & R. 169.

4 Mills v. Martin, 19 Johns. 7; Houston v. Moore, 5 Wheat. 51; 3 Serg. & R. 169.

5 Houston v. Moore, 5 Wheat. 56; 3 Serg. & R. 169; Luther v. Borden, 7 How. 1.

6 Houston v. Moore, 5 Wheat. 56; 3 Serg. & R. 169.

7 Opinions of Justices, 80 Mass. 548.

17 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, dockyards, and other needful buildings; and

District of Columbia.-The inhabitants of the District of Columbia are citizens of the United States, and may constitutionally have local legislation.1 Congress legislates for the District of Columbia with the same power as the legislative assemblies of the States,2 and in its exercise it acts as the legislature of the Union, and the right of exclusive legislation carries with it the right of exclusive jurisdiction in all cases whatsoever, including the power of taxation.5 The failure of Congress to exercise its power in no way impairs the constitutional grant. This clause may be understood as vesting courts established in the District of Columbia with authority to issue all process necessary to carry its orders into effect." In legislating for the District of Columbia, Congress is bound by the prohibitions of the Constitution.8 The terms of this section are not limited by the principle that representation is inseparable from taxation; taxes may be levied in proportion to the census directed to be taken by the Constitution. Congress may confer upon the city of Washington the power to assess for the improvement or repair of public streets, 10 or may provide for the construction of an aqueduct drawing its supply of water from the within limits of a State, and the use and occupancy of land for that purpose with permission and consent of such State. The right to exclusive jurisdiction depends upon the contract of cession.12 When land is purchased by the United States it cannot be sold without special authority of Congress. 18 Jurisdiction and authority are limited to the territory purchased, 14 and in case of retrocession, jurisdiction and authority are lost. 15 This provision is not applicable to the Territories. 16 See Supplement, post, 301. 1 U. S. v. Bevans, 3 Wheat. 388.

2 Mattingly v. District of Columbia, 6 Amer. Law Reg. 405.

3 Cohens v. Virginia, 6 Wheat. 424.

4 U. S. v. Coryell, 2 Mason, 91; Anon. 6 Op. Atty. Gen. 577.

5 Loughborough v. Blake, 5 Wheat. 317.

6 Quinn's Case, 12 Int. Rev. Rec. 151.

7 U. S. v. Williams, 4 Cranch C. C. 393.

8 U. S. v. More, 3 Cranch, 160.

9 Loughborough v. Blake, 5 Wheat. 317.

10 Willard v. Presbury, 14 Wall. 676.

11 Reddall v. Bryan, 14 Md. 444.

12 Scott v. Sandford, 19 How. 528.

13 U. S. v. Railroad Br. Co. 6 McLean, 517. 14 People v. Godfrey, 17 Johns. 225.

15 Phillips v. Payne, 92 U. S. 131.

16 Reynolds v. People, 1 Colo. 179.