perplexing question, which the judges did not undertake to decide. (a)

The President of the United States declared, that these constructions of the constitutional powers of the general government over the militia were novel and unfortunate, * and *265 he was evidently and decidedly of a different opinion. He observed, in his message to Congress on the 4th November, 1812, that if the authority of the United States to call into service and to command the militia, could be thus frustrated, we were not one nation, for the purpose most of all requiring it. These embarrassing questions, and the high authority by which each side of the argument was supported, remained unsettled by the proper and final decision of the tribunal that is competent to put them to rest, until the case of Martin v. Mott, (b) in 1827. In that case it was decided and settled by the Supreme Court of the United States, that it belonged exclusively to the President to judge when the exigency arises, in which he had authority under the constitution to call forth the militia, and that his decision was conclusive upon all other persons.

The case of Houston v. Moore (c) settled some important questions arising upon the national authority over the militia. The Acts of Congress already referred to, and the Act of 8th March, 1792, for establishing a uniform militia, were considered as covering the whole ground of congressional legislation over the subject. The manner in which the militia were to be organized, armed, disciplined, and governed, was fully prescribed; provision was made for drafting, detaching, and calling forth the state quotas, when requested by the President. His orders. were to be given to the chief executive magistrate, or to any militia officer he might think proper. Neglect or refusal to obey his orders was declared to be a public offence, and subjected the offender to trial and punishment, to be adjudged by a court-martial, and the mode of proceeding was perspicuously detailed.

The question before the Supreme Court of the United States was, whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militia-men,

(a) 8 Mass. Rep. 548.

VOL. I.

(b) 12 Wheaton, 19.

(c) 5 Wheaton, 1.

25

*266 drafted, detached, and called forth by the President into the service of the United States, and who had refused or neglected to obey the call. The court decided that the militia, when called into the service of the United States were not to be considered as being in that service, or in the character of national militia, until 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. But after the militia had been called forth, and had entered into the service of the United States, their character changed from state to national militia, and the authority of the general government over such detachments was exclusive. Actual service was considered by Congress as the criterion of national militia, and the place of rendezvous was the terminus a quo the service, the pay, and subjection to the articles of war, were to commence. And if the militia, when called into the service of the United States, refuse to obey the order, they remain within the military jurisdiction of the state, and it is competent for the state to provide for trying and punishing them by a state court-martial, to the extent and in the manner prescribed by the Act of Congress. The Act of Pennsylvania, of 1814, provided for punishing, by a state court-martial, delinquent militia-men, who were called into the service of the United States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the Act of Congress, and such an Act was held not to be repugnant to the constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts-martial, as it was authorized by the laws of the state, and not prohibited by those of the United States. It would remain to be so exercised, until Congress should vest the power exclusively elsewhere, or until the states should devest their courts-martial of such a

jurisdiction. This was the decision in the first instance, 267 of the Supreme Court of Pennsylvania; (a) and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

(a) Moore v. Houston, 3 Serg. & Rawle, 169.

to internal

(7.) The authority of Congress to appropriate public Powers of moneys for internal improvements, has been much dis- Congress as cussed on public occasions, and between the legislative improveand executive branches of the government; but the point has never been brought under judical consideration.

ments.

It has been contended, that, under the power to establish post-offices and post-roads, and to regulate commerce among the states, and to raise moneys to provide for the general welfare, and as incident thereto, Congress have the power to set apart funds for internal improvements in the states, with their assent, by means of roads and canals. Such a power has been exercised to a certain extent. It has been the constant practice to allow to the new states a certain proportion of the proceeds arising from the sale of public lands, to be laid out in the construction of roads and canals within those states, or leading thereto. In 1806, Congress authorized a road to be opened from Nashville, in Tennessee, to Natchez; and in 1809, they authorized the canal of Carondelet, leading from Lake Pontchartrain, to be extended to the river Mississippi. So late as the 8th of August, 1846, Congress granted lands to aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, in the state of Wisconsin. The Cumberland road was constructed under the Act of March 29th, 1806, and this road had been made under a covenant with the state of Ohio, by the Act of April 30, 1802, that a portion of the proceeds of lands lying within that state should be applied to the opening of the roads leading to that state, with the consent of the states through which the roads might pass. But the expenditures on that road far exceeded the proceeds of sales of public lands in Ohio, and, in 1817, the President of the United States objected to a bill, on the ground that the constitution did not extend to making roads and canals, and improving watercourses through the different states; nor could the assent of those states confer the power. Afterwards, in 1822, the President objected to a bill appropriating money for repairing the Cumberland road, and establishing gates and tolls on it.

*

On these and other occasions, there has been a great and decided difference of opinion between Congress and 268 the President on the constitutional question. President

Jefferson, in his message of December 2d, 1806, and President Madison, in his message of December 3d, 1816, equally denied any such power in Congress. On the other hand, it appears that Congress claim the power to lay out, construct, and improve post-roads, with the assent of the states through which they pass. They also claim the power to open, construct, and improve military roads on the like terms, and the right to cut canals through the several states, with their assent, for promoting and securing internal commerce, and for the more safe and economical transportation of military stores in time of war; and leaving, in all these cases, the jurisdictional right over the soil in the respective states. (a)

In the inaugural address of President Adams, on the 4th of March, 1825, he alluded to this question, and his opinion seemed to be in favor of the constitutional right, and of the policy and wisdom of the liberal application of the national resources to the internal improvement of the country. He intimated, that speculative scruples on this subject would probably be solved by the practical blessings resulting from the application of the power, and the extent and limitations of the general government, in relation to this important interest, settled and acknowledged to the satisfaction of all. This declaration may be considered as withdrawing the influence of the official authority of the President from the side on which it has hitherto pressed, and adding it to the support of the preponderating opinion in favor of the competency of the power claimed by Congress. (b)

(a) In the case of Dickey v. Turnpike Road Co. 7 Dana, R. 113, the Kentucky Court of Appeals decided, that the power given to Congress by the constitution to establish post-roads, enabled them to make, repair, keep open, and improve post-roads, when they should deem the exercise of the power expedient. But in the exercise of the right of eminent domain on this subject, the United States have no right to adopt and use roads, bridges, and ferries, constructed and owned by states, corporations, or individuals, without their consent, or without making to the parties concerned just compensation. If the United States elect to use such accommodations, without the performance of such a previous condition, they stand upon the same footing, and are subject to the same tolls and regulations, as private individuals. This important decision was well supported by sound reasoning.

(b) In February, 1827, after an animated debate, the House of Representatives, by a vote of 101 to 67, voted to appropriate $30,000 for the continuation of surveys of routes for roads and canals. In April, 1830, on the bill, in the House of Representatives, to construct a road from Buffalo, in New York, through Washington to New

Orleans, great objection was made to the constitutionality of the power, and the House, by a vote of 105 to 88, rejected the bill, though probably the vote was governed, in part, by other considerations; for other bills, for aiding the making roads and canals, passed into laws during that session, and their avowed purpose was the great object of internal improvement. President Jackson, in 1830, declared himself to be of opinion, that Congress did not possess the constitutional power to construct roads and canals, or appropriate money for improvements of a local character; but he admitted that the right to make appropriations for such as were of a national character had been so generally acted upon, and so long acquiesced in, as to justify the exercise of it, on the ground of continued usage. He objected, upon that distinction, to the bills authorizing subscriptions to the Maysville and Rockville Road Companies, as not being within the legitimate powers of Congress. The great question concerning the power of Congress to appropriate moneys for internal improvements within the states, remained still as unsettled as ever, as late as the 3d of August, 1846; for on that day President Polk objected to and defeated the bill, which had passed both houses of Congress, for appropriating $1,378,450, for separate and distinct objects of internal improvement, in certain harbors, rivers, and lakes in various parts of the United States. The President denied the existence of a constitutional power in the federal government to construct works of internal improvement within the states, or to appropriate moneys from the treasury for that purpose. He considered the absence of such a power to be a principle of construction well settled, and that the inexpediency of the power was demonstrated in the exercise of it in that case; for the bill contained appropriations of money for more than twenty objects of internal improvement, called, in the bill, harbors, at places which have never been declared by law either ports of entry or delivery, and at which there has never been an arrival of foreign merchandise, and from which there has never been a vessel cleared for a foreign country. The constitutional scruples of the President went, in their application in this case, to interdict the necessary, and, in my opinion, the clearly constitutional jurisdiction and discretion of Congress, "to regulate commerce with foreign nations and among the several states," as to the improvement of the navigation of the many rivers, harbors, and great lakes within the United States, and on which waters is carried an immensely valuable commerce. This strict construction of the constitution is in striking contrast with that large construction which has been given to the constitution, in authorizing Congress to admit new states into the Union, and to which we have already alluded in a preceding note. See ante, p. 259. The rightful power of the general government to direct the improvement of the navigation of the internal waters of the United States for the commercial use of the Union, and to apply the revenues thereof for that purpose, appears to me to result from a sound construction of the constitution. It is one of its great and essential objects. The Mississippi, for instance, with its millions of inhabitants, and great cities and towns on its banks, calls loudly for means to clear and remove obstructions to a safe navigation. The states cannot do it, and the improvement must come, if it comes at all, from the general government. The whole Union is deeply interested in the safe and easy navigation of the great rivers and lakes within the limits of the United States, and bordering on two or more states. It makes no difference in reason or policy in the necessary application of the power, whether the rivers or lakes are divided by two or more states. It is sufficient for the power, if the improvement to be called for be general in its object, and for national purposes, and for the regulation, safety, and facility of commerce. All navigable waters, not land-locked within a state, whether they be rivers, harbors, gulfs, bays, lakes, or coasts of the ocean, are, and were intended to be, and