teers" were asked for; that is, required. This was done, manifestly, upon the ground of the power "to raise armies," and the "volunteers" were designated and treated as a constituent part of the United States army. On some essential points, however, they were treated as militia. Regiments were organized according to states; the entire number of men called for was divided into quotas for the several states; and the inferior officers were appointed by the respective governors. It would, indeed, be difficult to prove that this was actually unconstitutional, but, at all events, the federal army and the militia were not kept so distinctly separate as they should have been, or at least might have been, according to the true intent of the constitution.

$49. MILITIA. There is no militia of the United States. The constitution recognizes only a militia of the several states, and the authority of the federal government as to them is precisely defined. It is nowhere made the express duty of the states to have a militia. But not only does the constitution take the existence of a state militia for granted, but the states can be compelled to maintain one by federal legislation, for congress is authorized "to provide for organizing, arming and disciplining the militia." 1

1 "Every able-bodied male citizen of the respective states, resident therein, who is of the age of eighteen years, and under the age of forty-five years, shall be enrolled in the militia." Rev. Stat., sec. 1625. But, as it further says that "all persons who now are or may hereafter be exempted by the laws of the respective states shall be exempted from militia duty," the states are absolutely bound only to have some sort of a militia. Even if this is not the spirit of the law, its letter permits them to make the exceptions so extensive as to become the rule. Their freedom of action is expressly restricted only in so far that they must regard the exceptions made by the federal law, especially the exemption of federal officials. If a state abuses the freedom left it by the letter of the law, it might not be able to

The training of the militia, according to the rules laid down by congress, and the appointment of officers, are strictly reserved to the states (art. I., sec. 8, § 16). The militia can be called into the service of the Union only for three distinct purposes: "to execute the laws of the Union, suppress insurrections and repel invasions" (Ibid., 15). The militia cannot be taken out of the country. Moreover it can be directly called into service to suppress an insurrection only when the insurrection is against the United States. In case of domestic violence, directed solely against a state government, the federal government can interpose only on application of the state legislature, or of the governor if the legislature is not in

raise an armed force for its own protection. For, when the militia of several states is called into the service of the United States, the total number of men required must be distributed among these states in proportion to the number of their representatives in congress.

By an act of July 17, 1862, the call must not be for more than nine months. If the militia is taken into the service of the United States, it is subject to the same rules and articles of war as the regular army, but also receives "the same pay, rations, clothing and camp equipage." Its court-martials, however, are made up only of militia officers. A law of July 14, 1862, put militia in the national service upon the same footing as regular soldiers, so far as pension-rights were concerned. The first militia act (May 8, 1792) prescribed exactly the arms and equipments with which every officer and soldier should be provided. As early as 1808, congress appropriated $200,000 per annum for the militia, for the supply of arms, etc.,- an amount which was to be annually divided among the states in proportion to the number of their representatives in congress. As a result of this arrangement the seceded states were able to begin war against the Union with arms furnished them by the government of the Union. The federal laws contain no absolutely binding directions as to how the militia should be subdivided into divisions, brigades, regiments, etc., but the composition of the corps of officers is carefully prescribed. Each state must have an adjutant-general, and he must send a report to the president at the beginning of each year. Army regulations as to discipline and drill are to be taken as a model.

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.?

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

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