dent 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, of the Supreme Court of Pennsylvania ;,

a Moore v. Houston, 3 Serg. and Rawle, 169.


and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

(7.) The authority of Congress to appropriate public mo- Power of neys for internal improvements, has been much discussed on to internal public occasions, and between the legislative and executive branches of the government; but the point has never been brought under judicial consideration.

It has been contended, that, under the power to establish post offices and post roads, 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 Ponchartraine, to be extended to the river Mississippi. 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 road 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 water-courses, 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 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 the President on the constitutional question. President Jefferson, in his message of December 20, 1906, and President Madison, in his message of December 30, 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.

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 favour 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 favour of the competency of the power claimed by Congress.

a 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 of 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.

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