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session. In this instance, however, it is bound to lend its aid (art. IV., sec. 4). The constitution does not say in so many words whose duty it is to call out the militia for any of the purposes mentioned. The wording of the particular clause "to provide for calling forth❞—shows, however, that congress need not act directly in every case, but may pass general laws providing under what circumstances and in what way a call shall be made. This it has done, and has transferred the power, with all the implied powers and duties, to the president. When the militia is called into the service of the United States, the provision applies to it, which authorizes congress "to make rules for the government and regulation of the land and naval forces" (art. I., sec. 8, § 14). The wording of this paragraph, which forms the basis of the whole "military law," is not sufficiently clear to permit the line between the authority of congress and that of the president as commander-in-chief to be always drawn with certainty." $50. QUARTERING SOLDIERS. Traditions of English history caused the passage of the third amendment. This provides that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

1 This provision has this weighty result, that, when two legislatures or two governors are opposed to one another in the same state, the president must decide which government is the legal one. Whether there really is domestic violence is a question of fact, as to which, according to law, the president has the exclusive right of decision. If his decision is held to be erroneous by congress, the latter can administer whatever remedy seems fit, but there can be no appeal to the courts from the judgment of the president. Luther vs. Borden, Howard, VII., 43-45; Martin vs. Mott, Wheaton, XII., 29-31.

2 See Pomeroy, p. 297, for a case of conflict resulting from this.

THE SEAT OF GOVERNMENT AND THE SEPARATE PROPERTY OF THE NATION.

51. DISTRICT OF COLUMBIA. When, after the termination of the war of independence, the wretched effects of a weak government became daily more and more manifest, the evils due to the fact that congress had to meet within the limits of a state's jurisdiction were especially felt. This made congress dependent to a certain degree upon the state government, a dependence which was always improper, and under critical conditions might have become fatal. These evils led the authors of the constitution to think of a means of preventing them for the future. And they concluded that they had discovered it in the provision authorizing congress to acquire by cession from any of the states a district of not more than ten miles square as the seat of government over which it could "exercise exclusive legislation in all cases whatsoever" (art. I., sec. 8, § 17). The territory called the District of Columbia was acquired from Virginia and Maryland. The part ceded by Virginia was afterwards ceded back to her. The history of the slavery question teaches on every page the eminent significance of the fact that the capital was built within the domain of slavery. Against the clear wording of the constitution, the south asserted that congress could not, without the consent of Maryland (and Virginia), abolish slavery in the District. Until civil war had come, the representatives of the north acknowledged the "moral” obligation of letting it continue. The seat of government was withdrawn from the influence of a state government, but instead it was brought under the infinitely more potent influence of the slavocracy. Apart from the slavery question, this paragraph has given rise to no far-reaching

controversies. The principles laid down by the supreme court, that the exclusive legislative power involves exclusive jurisdiction, and that congress is not the local legislature of the District, but possesses, as the national legislature, exclusive legislative power over it, have never been seriously assailed.' The power of giving the city of Washington its own municipal government has therefore always been regarded as self-evident. On the contrary, the constitutionality of organizing the District into a territory like the ordinary territories has been disputed, because a partial delegation of the legislative power is inadmissible, on account of the expressly stated exclusiveness of this power. It is, however, generally admitted that "exclusive " does not mean the same as "unlimited." Congress cannot grant the inhabitants of the District. any rights which, according to the general political nature of the Union, belong only to the population of the states such, for instance, as representation in congress, participation in the presidential election, etc. And just as little can congress rule the District without regard to the provisions of the so-called "bill of rights." But what congress cannot do in regard to the District in matters not involving the rights of the states as such, that it also cannot do in reference to anybody or anything.2

1 Cohens vs. Virginia, Wheaton, VI., 424.

2 Congress has tried all sorts of experiments as to the local government of the District, some of them with very unfortunate results. At present there are three commissioners at the head of the administration of the District. The inhabitants cannot well grieve over the loss of their short-lived enjoyment of a limited autonomy, for while their rights have again become more limited (necessarily so under the present system) their interests are better cared for. They must bear the same burdens as the rest of the people, have the same taxes to pay and are bound to serve in the militia. But in spite of their full

52. NATIONAL PROPERTY. In the same paragraph equally exclusive authority is given congress "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." Real estate within a state may also be acquired by the nation without the consent of the state legislature, but it is only when that consent is given that this provision applies. The inhabitants of such places are legally no longer inhabitants of the state, that is, they do not pos sess the civil and political rights which would belong to them as citizens of the state. In spite of this provision, the seceded states demanded the evacuation and surrender of the forts and arsenals as their right, on the plea that the "places" had not ceased to be a portion of the territory of the state on account of congress's acquiring exclusive legislative power and jurisdiction over them, and that consequently they must ipso facto revert to the states if the latter by virtue of their sovereignty cut loose from the Union. If the premises, that is, state sovereignty and the resulting right of secession, are admitted, then the correctness of the conclusion must be granted, and the Union would have had only a right of reasonable indemnification. But what legal claims could the seceded

citizenship political rights are withheld from them solely because they have their domicile at the seat of government. This is an anomaly that has never been justified theoretically, and its necessity—not to say its expediency - has become at least doubtful since the power of the federal government has become so firmly established and so far beyond the power of each separate state. This anomaly, moreover, will always remain a thorn in the flesh of the American disciples of the doctrine of natural political rights. The creation of the District of Columbia is one of those steps which it is scarcely possible to retrace, even if the circumstances, which at one time made them seem wise, have given room to a completely changed state of things.

states, upon these premises, make in regard to that federal property, the territories, which had most directly led to the development of the clash of interests between the north and south into an "irrepressible conflict" which had to lead to a rupture? The abstract logic of this method of interpreting constitutional law would have obliged the south to demand the partition of the territorial domain among the several states. This would have been the final practical result of the doctrine, and it puts its absurdity in the most glaring light.

$53. THE TERRITORIES. The slavery question, which every year became more and more the central point of the whole inner history of the United States, culminated in the struggle over the territories; that is, in the ques tion what rights the slave-holder had, or ought to have, in them. While the southern states had originally preferred to rely upon a claim of equity, and had triumphantly celebrated the fact that their "peculiar institution" could be unconditionally and forever excluded only from the territorial domain north of 36° 30', the rapid development of the north forced them to constantly increase their claims, until they finally laid down the principle that slavery could not be prohibited in a territory either by congress or by the people of the territory through its legislature, but that, independent of the constitution, the slave-holder could go with his slaves into any territory, and must be protected in his ownership until the territory became a sovereign state and thus acquired the right to determine for itself whether or no slavery should exist within it. The so-called Douglas democrats also denied the power of congress to legislate as to slavery in the territories, but declared that the population of each territory was authorized to permit or prohibit slavery. The republicans, on the contrary, advocated fully and completely the doc

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