Commentaries on American Law (1826-30)
Chancellor James Kent
Of Judicial Constructions of the Power of Congress
I PROCEED to consider the cases in which the powers of congress have been made the subject of judicial investigation.
(1.) Congress have declared by law, that the United States were entitled to priority of payment over private creditors, in cases of insolvency, and in the distribution of the estates of deceased debtors. The act of congress of 31st July, 1789, sec. 21 confined the priority to custom house bonds. The act of 4th August, 1790, ch. 35, sec. 45. limited the priority in the same manner. The act of 2d May, 1792, placed the surety in a custom house bond, who paid the debt, on the same footing, hi respect to priority, as the United States; and it confined the cases of insolvency mentioned in the former law, to those of a voluntary assignment, and of attachments against absconding, concealed, or absent debtors. The act of 3d March, 1797, ch. 74, sec. 5 went further, and gave the United States a preference in all cases whatsoever, whoever might be the debtor, or however ho might be indebted, in case the debtor became insolvent, or the assets in the hands of his representatives, after his death, were insufficient to pay his debts. This priority was declared to extend to cases in which the debtor had made a voluntary assignment of his property, or in which his effects had been attached as an absconding or absent debtor, or in which an act of legal bankruptcy had been committed. The act of March 2d, 1799, ch. 128, sec. 65 provided, that in all cases of insolvency, or where any estate in the hands of executors or administrators should be insufficient, debts due to the United States, on bonds taken under the collection act, should have preference; and sureties in such bonds, on paying the same, had the same preference as was reserved to the United States.
These were the legislative provisions giving preference to debts due to the United States; and in Fisher v. Blight,1 the authority of congress to pass such laws was drawn in question. The point discussed in that case was, whether the United States, as holders of a protested bill of exchange, negotiated in the ordinary course of trade, were to be preferred to the general creditors, when the debtor becomes bankrupt. The Supreme Court decided, that the acts of congress, giving that general priority of the United States, were constitutional. It was a power founded on the authority to make all laws which should be necessary and proper to carry into effect the powers vested by the constitution in the government of the United States. Where the end was within the lawful powers of the government, congress possessed the choice of the means, and were empowered to use any means which were in fact conducive to the exercise of the powers granted. The government is to pay the debts of the union, and must be authorized to use the means most eligible to effect that object. It has a right to make remittance by bills or otherwise, and to take those precautions which will render the transaction safe. If this claim, of priority interferes with the right of the state sovereignties, respecting the dignity of debts, and defeats the measures which they would otherwise have a right to adopt to secure themselves, it is a necessary consequence of the supremacy of the laws of the union on all subjects to which the legislative power of congress extends.
The principle is here settled, that the United States are entitled to secure to themselves the exclusive privilege of being preferred as creditors to private citizens, and even to the state authorities, in all cases of the insolvency or bankruptcy of their debtor. But the court observed, that no lien was created by the statutes giving the preference. No bona fide transfer of property in the ordinary course of business was overreached. It was only a priority of payment, which, under different modifications, was a regulation in common use, and a bona fide alienation of property, before the right of priority attached, was admitted to be good.
The next case that brought into discussion this question of priority, was that of the United States v. Hooe,2 it was there held that the priority to which the United States were entitled, did not partake of the character of a lien on the property of public debtors. The United States, in the mere character of creditor, have no lien on the real estate of their debtor. If the priority existed from the time the debt was contracted, and the debtor should continue to transact business with the world, the inconvenience would be immense. The priority only applied to cases where the debtor had become actually and notoriously insolvent, and being unable to pay his debts, had made a voluntary assignment of all his property, or having absconded or absented himself, his property had been attached by process of law. A bona fide conveyance of part of the property of the debtor, not for the fraudulent purpose of evading the law, but to secure a fair creditor, is not a case within the act of congress giving priority.3 In this case of the United States v. Hooe, a collector of the revenue had mortgaged part of his property to his surety in his official bond, to indemnify him from his responsibility as surety, and to secure him from his existing and future endorsements for the mortgagor at bank, and the mortgage was held valid against the claim of the United States, although the collector was, in point of fact., unable to pay all his debts at the time the mortgage was given, and although the mortgagee knew, when he took the mortgage, that the mortgagor was largely indebted to the United States.
Afterwards, in Harrison v. Sterry,4 it was held, that in the distribution of a bankrupt’s effects, the United States were entitled to their preference, although the debt was contracted by a foreigner in a foreign country, and the United States had proved their debt under a commission of bankruptcy. Though the law of the place where the contract is made be, generally speaking, the law of the contract, yet the right of priority forms no part of the contract. The insolvency which was to entitle the United States to a preference, was declared, in Prince v. Bartlett,5 to mean a legal and known insolvency, manifested by some notorious act of the debtor pursuant to law.
This was giving to the world some reasonable and definite test by which to ascertain the existence of the latent and dangerous preference given by law to the United States. In this last case, the effects of an insolvent debtor, duly attached in June, were considered not to be liable to the claim of the United States on a custom-house bond given prior to the attachment, and put in suit in August following. The private creditor had acquired a lien by his attachment, which could not be divested by process on the part of the United States subsequently issued. But the decision in Thelusson v. Smith,6 established the principle, that the preference in favor of the United States, whenever it existed, cut out a prior judgment creditor, for the law made no exception in favor of such a creditor. It was considered, that the word insolvency in the acts of congress of 1790, 1797, and 1799, meant a legal insolvency, and that a mere state of insolvency, or inability in a debtor to pay all his debts, gave no right of preference to the United States, unless it was accompanied by a voluntary assignment of all the property for the benefit of creditor, or some legal act of insolvency. The United States, in all such cases, are to be first satisfied out of the debtor’s estate; but if, before the right of preference has accrued, he has made a bona fide conveyance of his estate to a third person, or has mortgaged the person, or has mortgaged the same to secure a debt, or if the property has been seized under an execution, the property is divested from the debtor, and cannot be made liable to the United States. The act of congress defeats the ordinary preference of a judgment lien, in favor of the preference of the United States, in the cases specified in the 65th section of the act of 1799.7
The United States have, accordingly, a preference as creditors to the extent above declared, in four cases, viz, (1) In the case of the death of the debtor without sufficient assets; (2) bankruptcy or legal insolvency manifested by some act pursuant to law; (3) a voluntary assignment by the insolvent of all his property to pay his debts; (4) in the case of an absent, concealed, or absconding debtor, whose effects are attached by process of law. The priority was intended to operate only where, by law, or by the act of the debtor, his property was sequestered for, the use of his creditors; and it is proper that this prerogative right of the United States should be strictly construed, and precisely defined, for it is in derogation of the general rights of creditors.8
2. The next question which called forth a construction from every part of the government, as to the implied powers of congress, was, whether congress had power to incorporate a bank. In the year 1791, the secretary of the treasury had recommended the institution of a national bank, as being of primary importance to the prosperous administration of the finances, and of the greatest utility in the operations connected with the support of public credit. But the bill for establishing a bank was opposed in the house of representatives, as not authorized by the constitution. It was contended, that the government of the United States was limited to the exercise of the enumerated powers, and that the power to incorporate a bank was not. one of them, and if vested in the government, it must be an implied power; and it was contended, that the power given to congress to pass all laws necessary and proper to execute the specified powers, must be limited to means necessary to the end, and incident to the nature of the specified powers. On the other hand, it was urged in favor of the bill, that incidental, as well as express powers, necessarily belonged to every government, and that when a power was delegated to effect particular objects, all the known and usual means of effecting them passed as incidental to them; and it was insisted, that a bank was a known and usual instrument, by which several of the enumerated powers of government were exercised. After the bill had passed the two houses of congress, the question touching its constitutionality was agitated with equal ability and ardor in the executive cabinet. The secretary of state, and the attorney general, conceived that congress had transcended their powers, but the secretary of the treasury maintained the opposite opinion. Their respective opinions were founded on a train of reasoning denoting great investigation of all the leading and fundamental principles of the constitution, and they were submitted to the consideration of the President of the United States. It was argued against the constitutionality of the act, that the power to incorporate a bank was not among the enumerated powers, and to take a single step beyond the boundaries specially drawn around the powers of congress, would be to take possession of an undefined and undefinable field of power; that though congress were authorized to make all laws necessary and proper for carrying into execution the enumerated powers, they were confined to those means which were necessary, and not merely convenient. It meant those means without which the grant of the power would be nugatory, and that if such a latitude of construction was allowed as to give to congress any implied power on the ground of convenience, it would swallow up all the list of enumerated powers, and reduce the whole to one phrase. On the other hand, it was contended, hat every power vested in a government was, in its nature, sovereign, and gave a right to employ all the means fairly applicable to the attainment of the end of the power, and not specially precluded by specified exceptions, nor contrary to the essential ends of political society; that though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects, and to its declared purposes and trusts; that it was incident to sovereign powers erect corporations, and, consequently, it was incident to the United States s erect one in relation to the objects entrusted s its management; that implied powers are as completely delegated as those which are expressed, and the power of erecting a corporation may as well be implied as any other instrument or means of carrying into execution any of the specified powers; that the exercise of the power in that case had a natural relation to the lawful ends of the government, and it was incident to the sovereign power to regulate and to employ all the means which apply with the best advantage s that regulation; that the word necessary in the constitution, ought not s be confined to those means, without which the grant of power would be nugatory, and it often means no more than needful, requisite, useful, or conducive to, and that was the true sense in which the word was used in the constitution. The relation between the measure and the end, was the criterion of constitutionality, and not whether there was a greater or less necessity or utility. The infinite variety, extent, and complexity, of national exigencies, necessarily required great latitude of discretion in the selection and application of means; and the authority entrusted to government ought, and must be exercised, on principles of liberal construction.
President Washington gave these arguments of his cabinet a deliberate and profound contemplation, and it terminated in a conviction, that the incorporation of a bank was a measure authorized by the constitution, and the bill passed into a law. This same question came before the supreme court of the United States in 1819, in the case of McCulloch v. The State of Maryland,9 in reference to the new bank of the United States, which was incorporated in 1816, and upon which the legislature of Maryland had imposed a tax. Notwithstanding the question arising on the construction of the powers of congress had been settled so far as an act of congress could settle it, in 1791, and again in 1816, it was thought worthy of a renewed discussion in that case. The Chief Justice, in delivering the opinion of the court, observed, that the question could scarcely be considered as an open one, after the principle had been so early introduced and recognized by many successive legislatures, and had been acted upon by the judicial department as a law of undoubted obligation. He admitted that it belonged to the supreme court alone, to make a final decision in the case, and that the question involved a consideration of the constitution in its most interesting and vital part.
It was admitted, that the government of the United States was one of enumerated powers, and that it could exercise only the powers granted to it; but though limited in its powers, it was supreme within its sphere of action. It was the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represented all, and acted for all. In respect to those subjects on which it can act, it must necessarily bind its component parts; and this was the express language of the constitution, when it declared that the constitution, and the laws made in pursuance thereof, were the supreme law of the land, and required all the officers of the state governments to take an oath of fidelity s it. There was nothing in the constitution which excluded incidental or implied powers. The articles of the confederation gave nothing to the United States but what was expressly granted; but the new constitution dropped the word expressly, and left the question, whether particular power was granted, to depend on a fair construction of the. whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were entrusted to the general government; and a government entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depended, must also be entrusted with ample means for their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the constitution, when granting great powers for the public good, the intention of impeding their exercise, by withholding a choice of means.
The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The power of creating a corporation, though appertaining to sovereignty, was not a great, substantive, and independent power, but merely a means by which other objects were accomplished; in like manner, no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the (purposes of education. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. It is nothing but ordinary means s attain some public and useful end. The constitution has not left the right of congress to employ the necessary means for the execution of its powers to general reasoning. It is expressly authorized to employ such means; and necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word necessary admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction, the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises of human affairs. To prescribe the specific means by which government should in all future time execute its power, and s confine the choice of means to such narrow limits as should not leave it in the power of congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide by immutable rules for exigencies which, if foreseen at. all, must have been seen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances.
If the end be legitimate, and within the scope of the constitution, all means which are appropriate, and plainly adapted to this end, and which are not prohibited, are lawful; and a corporation was a means not less usual, nor of higher dignity, nor more requiring a particular specification, than other means. A national bank was a convenient, a useful, and essential instrument, in the prosecution of the fiscal operations of the government. It was clearly an appropriate measure; and while the Supreme Court declared it s be within its power and its duty s maintain that an act of congress exceeding its power was not the law of the land, yet if a law was not prohibited by the constitution, and was really calculated to effect an object in trusted to the government, the court did not pretend to the power to inquire into the decree of its necessity. That would be passing the line which circumscribes the judicial department, and be treading on legislative ground.
The court, therefore, decided, that the law creating the Bank of the United States, was one made in pursuance of the constitution; and that the branches of the national bank, proceeding from the same stock, and being conducive to the complete accomplishment of the object, were equally Constitutional.
The Supreme Court were afterwards led in some degree to review this decision. in the case of Osborn v. The United States Bank,10 and they there admitted, that congress could not create a corporation for its own sake, or for private purposes. The whole opinion of the court, in the case of McCulloch v. The State of Maryland, “was founded on, and sustained by, the idea, that the bank was an instrument which was necessary and proper for carry in, into effect the powers vested in the government. It was created for national purposes only, though it was undoubtedly capable of transacting private as well as public business; and while it was the great instrument by which the fiscal operations of the government were effected, it was also trading with individuals for its own advantage. The bank, on any rational calculation, could not effect its object, unless it was endowed with the faculty of lending and dealing in money. This faculty was necessary to render the bank competent to the purposes of government, and, therefore, it was constitutionally and rightfully engrafted on the institution.
(3.) The construction of the powers of congress relative to taxation, was brought before the Supreme Court in 1796, in the case of Hylton v. The United States.11 By the act of 5th June, 1704, congress laid a duty upon carriages for the conveyance of persons, and the question was, whether this was a direct tax within the meaning of the constitution. If it was not a direct tax, it was permitted to be rightly laid, under that part of the constitution which declares that all duties, imposts, and excises, shall be uniform throughout the United States; but if it was a direct tax, it was not constitutionally laid, for it must then be laid according to the census, under that part of the constitution which declares that direct taxes shall be apportioned among the several states, according to numbers. The Circuit Court in Virginia was divided in opinion on the question, but on appeal to the Supreme Court, it was decided, that the tax on carriages was not a direct tax, within the letter or meaning of the constitution, and was therefore constitutionally laid.
The question was deemed of very great importance, and was elaborately argued. It was held, that a general power was given s congress to lay and collect taxes of every kind or nature without any restraint. They had plenary power over every species of taxable property except exports. But there were two rules prescribed for their government the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz. duties, imposts, and excises, were s be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within the words, duties, imposts, or excises, they were to be laid by the rule of uniformity or not, as congress should think proper and reasonable.
The constitution contemplated no taxes as direct taxes, but such as congress could lay in proportion to the census, and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule without very great inequality and injustice. If two states, equal in census, were each to pay 80,000 dollars, by a tax on carriages of eight dollars on every carriage, and in one state there were 100 carriages, and in the other 1,000, the owners of carriages in one state would pay ten times the tax of owners in the other. While A., in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage 80 dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax within the purview of the constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power s lay duties, and the better opinion seemed s be, that the direct taxes contemplated by the constitution were only two, viz. a capitation or poll tax, and a tax on land. The court concluded, that a tax on carriages was an indirect tax on expense or consumption, and, therefore properly laid, pursuant to the rule of uniformity.
In Loughborough v. Blake,12 the power of taxation was again brought under judicial discussion. The question was immediately of a local nature, and it was, whether congress had the right to impose a direct tax upon the unrepresented District of Columbia; but there were principles involved in the decision, which had an extensive and important relation to the whole United States.
It was declared, that the power to tax extended equally to all places over which the government extended. It extended as well as the District of Columbia, and to the territories which were not represented in congress, as to the rest of the United States. Though duties were to be uniform, and taxes were to be apportioned according to numbers the power was coextensive with the empire. The inhabitants of the territories of Michigan, and of Florida and Arkansas, for instance, as well as the District of Columbia, though without any representation in congress, were subject to the full operation of the power of taxation, equally as the people of New York or Massachusetts. But the court held, that congress are not bound, though they may, in their discretion, extend a direct tax to the territories as well as to the states. A direct tax, if laid at all, must be laid on every state conformably to the census, and, therefore, congress has no power to exempt any state from its due share of the burden. But it is understood that congress are under no necessity of extending a tax to the unrepresented District of Columbia, and to the territories; though; if they be taxed, then the constitution gives the rule of assessment. This construction must be admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the North West Territory, for instance, might exceed the amount of the tax. Here is an anomalous case in our government, in which representation and taxation are not inseparable though the principle that the power of taxation could not rightfully exist without representation, was a fundamental ground of our revolution. The court did not consider a departure from a general principle, in this case, to be very material or important, because the case was that of territories which were in a state of infancy, advancing to manhood, and looking forward to complete equality as soon as that state of manhood should be attained. It was the case also of the District of Columbia, which had voluntarily relinquished the right of representation, and adopted the whole body of congress for its legitimate government.
(4.) Congress have the exclusive right of preemption to all Indian lands lying within the territories of the United States. This was so decided in the case of Johnson v. McIntosh.13 Upon the doctrine of the court in that case, and in that of Fletcher v. Peck,14 the United States own the soil, as well as the jurisdiction, of the immense tracts of wild and unpatented lands, included within their territories, and of all the productive funds which these lands may hereafter create. The title is in the United States, by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain; and the Indians have only a right of occupancy, and the United States possess the legal title subject to that occupancy, and with an. absolute and exclusive right to extinguish the Indian title of occupancy either by conquest or purchase. The title of the European nations, and which passed to the United States, to this immense territorial empire, was founded on discovery and conquest; and, by the European customary law of nations, prior discovery gave this title to the soil, subject to the possessory right of the natives, and which occupancy was all the right that European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. The constitution gave s congress the power to dispose of, and to make all needful rules and regulations respecting the territory, or other property belonging to the United States, and to admit new states into the union. Since the constitution was formed, the value and efficacy of this power have been magnified to an incalculable extent, by the purchase of Louisiana and Florida; and under the doctrine contained in the case I have referred to, congress have a large and magnificent portion of territory under their absolute control and disposal. This immense property has become national and productive stock, and congress, in the administration of this stock, have erected temporary governments under the provisions of the ordinance of the congress under the confederation; and they have appointed the officers to each territory, and allowed delegates in congress to be chosen by the inhabitants every second year, and with a right to debate, but not to vote, in the house of representatives.15
(5.) By the constitution of the United States, congress were, by general laws, to prescribe the manner in which the public acts, records, and judicial proceedings of every state, should be proved, and the effect thereof in every state. In pursuance of this power, congress, by the act of May 26, 1790, provided the mode by which records and judicial proceedings should be authenticated, and then declared, that they should have such faith and credit given to them in every court within the United States, as they had by law or usage in the courts of the state from whence the records were taken. Under this act it was decided, in the case of Mills v. Duryee,16 that if a judgment, duly authenticated, had, in the state court from whence it was taken, the faith and credit of the highest nature, viz. record evidence, it must have the same faith and credit in every other court. It was declaring the effect of the record, to declare the faith and credit that were to be given to it. The constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated, a power in congress to give, a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such a case. This same decision was followed in Hampton v. McConnel,17 and the doctrine contained in it may now be considered as the settled law of the land. It is not, however, to be understood, that nul tiel record is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced.18 And in Mayhew v. Thatcher,19 the court would seem to imply, that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other states, if the defendant had not personal notice of the suit, so as to have enabled him to defend it.
(6.) Congress have authority to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; and 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 president of the United States is to be the commander of the militia when called into actual service. The act of 28th of February, 1795, authorized the president, in case of invasion, or of imminent danger of it, to call forth such number of the militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war, and the law imposes a fine upon every delinquent, to be adjudged by a court martial composed of militia officers only. These militia court martials are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814, prescribes the manner of holding them.
During the last war, the. authority of the president of the United States over the militia became it subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared, and founded upon the existence of one of the specified exigencies; that when called out, they could not betaken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which was organized with proper officers This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia furnished with proper officers by the state.
Similar difficulties arose between the government of the United States and that of the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.
In Connecticut, the claim of the governor to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to, and received the strong and decided sanction, not only of the governor and council of that state, but of the legislature itself.20 In Massachusetts, the governor consulted the judges of the supreme judicial court, as to the true construction of the constitution on these very interesting points. The judges of the supreme court who were consulted were of opinion, that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the constitution of the United States existed, so as to require them to place the militia, or any part of it, in the service of the union, and under the command of the president. It was observed, that the constitution of the United States did not give that right, by any express terms, to the president or congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of congress, and produce a military consolidation of these states. The act of 28th February, 1795, vested in the president the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus foederis occurred, the militia would in fact be under the president’s control.
As to the question how the militia were to be commanded when duly called out, the judges were of opinion, that the president alone, of all the officers acting under the United States, was authorized to command them, and that he must command them as they were organized, under officers appointed by the states. The militia could not be placed under the command of any officer not of the militia, except that officer be the President of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the president. and of a union of militia with troops of the United States; and whether they were to act under their separate officers, butt in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and perplexing question, which the judges did not undertake to decide.21
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 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 is supported, have remained to this day unsettled by the proper and final decision of the tribunal that is competent to put them to rest. The case of Houston v. Moore,22 is the only one in which the national command of the militia seems to have been at all a subject of judicial discussion, and that case does not touch the points at issue between the United States and the states of Massachusetts and Connecticut, though the opinion of one of the judgest23 went far towards destroying the claims advanced on the part of those states. I do not wish to interfere, in this place, with vexed and undecided questions. My object, in the course of these elementary lectures, is to confine myself to a comprehensive and just survey of the principles of our government as they have been discussed, or as they have been practically explained and settled by competent authority. It may, however, be truly observed, that since the year 1812, when those questions were raised, many great and deeply interesting questions arising on the powers of the union, have been investigated and decided, and the progress of opinion, and the course of those decisions, have been in favor of a pretty liberal and enlarged construction of the constitution of the United States. The principles of the government, as now understood, would be much more favorable than they were in 1812, to the claim of the President of the United States, to judge exclusively, and authoritatively, when the militia were to be called out into the service of the union.24
The case of Houston v. Moore25 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 offense, 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 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 ins 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, aud 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 exercised, until congress should vest the power exclusively elsewhere, or until the states should divest their courts martial of such a jurisdiction. This was the decision, in the first instance, of the supreme court of Pennsylvania;26 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 moneys for internal improvements, have been much discussed on public occasions, and between the legislative and the 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 s 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. 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 have exceeded the proceeds of sales of public land in Ohio, above one million of dollars, 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 fur repairing Cumberland road, and establishing gates on it.
On these, and other occasions, there has been a great and decided difference of opinion between congress and the president on this constitutional question. President Jefferson, in his message of December 2d, 1806, and President Madison, in his message of December 3rd, 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 s 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 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 tills subject would probably he 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.27