ment. Congress, with two exceptions, gets no increase of direct power over military matters in time of war; it has only new and singular opportunities for calling its powers into action, which would probably be left dormant in periods of tranquillity. The exceptions to this general principle are, the power to make rules concerning captures, and the power to provide for calling forth the militia. The conscription measures certainly do not fall within the first of these exceptions; it will be shown in the sequel that they do not fall under the second. That Congress would not be likely to adopt this mode of replenishing its armies in peace, is plain enough; its direct responsibility to the people is sufficient to prevent a resort to so stringent a method, except under circumstances of the direst necessity.

§ 479. I am aware of but one judicial decision in which the constitutionality of this conscription act was elaborately considered and passed under review. The case was Knudler v. Lane,1 and arose in Pennsylvania. Its history was somewhat peculiar. In that state the Supreme Court consists of five judges. Each of these presides at Nisi Prius or Circuit, for the trial of jury causes, and the hearing of equity suits. According to their practice, it is customary, when a very important and difficult question is presented to a single judge at Nisi Prius, for him to call upon all his brethren for their assistance and advice in its decision; and thus the parties have the opinions of a full bench at once.

The case now referred to arose as follows: The plaintiff had been enrolled, and was subject to a draft. He commenced a suit in equity against the officers who had the matter in charge, and prayed an injunction restraining them from prosecuting the draft; the only ground alleged being the unconstitutionality of the conscription act. Application for a preliminary injunction was made to Woodward, J., at Nisi Prius. He called in the other judges, who differed in opinion; Lowrie, C. J., Woodward and Thompson, JJ., holding the statute void, while Strong and Read, JJ., dissented. The preliminary injunction was therefore awarded. Shortly after, and be

19 Wright's (45 Penn. St.) R. 238.

fore the case was finally disposed of, a general election took place in Pennsylvania, this pending litigation entering largely into the political canvass. Judge Lowrie's term of office having expired, he was a candidate for reëlection; but Judge Agnew was chosen in his place. A motion was soon after made before Strong, J., at Nisi Prius, to dissolve the injunction. The whole court were again called in, and Strong, Read, and Agnew, JJ., being the majority, dissolved the injunction; Woodward, C. J., and Thompson, J., now dissenting. The Supreme Court of Pennsylvania thus finally determined the act of Congress to be a constitutional exercise of power. It must be confessed, however, that the case partakes so largely of a certain political and partisan character, that it cannot be considered an impartial authority on either side. I shall endeavor, rejecting the unnecessary oratory of the judges, to present their legal arguments in a condensed· form.

§ 480. Against the constitutionality of the statute, it was urged (1.) That it was not valid under the power to call forth the militia, because the appointment of officers, etc., was not given to the states. This objection is unanswerable; and in fact it was conceded upon the other side, that the statute must be sustained solely under the power given to raise armies. (2.) It did not fall within that power, because the Constitution contemplated the raising of armies only by the ordinary method of enlistments; that this could not be said to be a necessary mode of exercising the power, because Congress had the express authority to call out the militia to suppress insurrections, and as this means had not been resorted to, none other could be called necessary. This, it will be noticed, was a repetition of the old argument so often urged in respect to other acts of the legislature, and so often answered by the Supreme Court. It was virtually saying that where one measure can be made use of, none other can be necessary, and none other can be adopted. (3.) It was objected that this statute deprived the states of their militia, which was sacredly reserved to them; that the persons between the ages of twenty and forty-five constituted the mi

litia, and as the President might, under the law, call them all out, the states might be left defenceless.

§ 481. In favor of the act of Congress, and in reply to these objections, it was urged: (1.) That the statute was not rested on the power to call forth the militia. (2.) That the grant of power to raise armies includes all the means by which armies can be raised; that this, and all other general grants of power, are complete; that Congress has full liberty to make any choice of means that will tend to accomplish the end which the Constitution proposed. This was applying to the power to raise armies, the old argument which had been so many times enforced by the Supreme Court, and by it applied to the powers of taxing, of regulating commerce, of borrowing money. (3.) That the last objection stated by the opponents of the law, was merely an argument ab inconvenienti, and went to the policy of the measure, and not to the power of the legislature; that it was also groundless, because by the express terms of the Constitution, Congress may call forth all the militia, and thus leave the states defenceless; that an exercise of their conceded power over the militia might, therefore, be as stringent upon the states as could be the possible effect of this statute.

§ 482. It may be added, that the third objection can in substance be applied with equal force to the exercise of many other legislative functions by the general government-for example, that of taxation. If it be true that an act of Congress is unconstitutional because it may possibly deprive the states of all control over a subject-matter within their jurisdiction, then every tax law is invalid; because, if the government chose to pursue such extreme measures, they might sweep away all taxable property, and leave the states no resources with which to sustain their governments.

In fact there seems to be a strong analogy between the power to tax and the power to raise armies. Both are in their nature somewhat hostile to the personal interests of the individual citizen; yet both are confessedly indispensable to the existence of a government representing the sovereignty of the people. The exercise of the taxing power is unlimited;

its extent cannot be defined; it must be equal to the emergencies which shall arise in the history of the nation, emergencies which no foresight can possibly anticipate. These doctrines have been announced by the Supreme Court, and have never been controverted. The extent of the power to raise armies is equally undefined and undefinable. The framers of the Constitution did not pretend to foresee the exigencies which must be met in the future. An army of a few thousands, sufficient to garrison the principal forts, and guard the exposed frontiers, may be enough under ordinary circumstances; but a condition may arise when the entire able-bodied population must take the field, or the life of the nation is extinguished. It seems absurd to say that Congress may provide for one of these emergencies, but is powerless to meet the other. To sum the argument up in a word: the Constitution nowhere limits the size of the national army; that must be determined by the needs of each particular occasion; whatever means are necessary to raise an army of sufficient strength, are within the power and discretion of Congress. It is easy to declaim against a conscription law, but no danger is to be apprehended from it. The people will never permit their representatives to place it upon the statute book, unless they themselves are engaged in a death-struggle for national existence, and are willing to sacrifice not only their property, but their persons, for the country's salvation. Let us devoutly hope that an occasion for the sacrifice may never again arise.i

SECTION XI.

THE POWER OVER THE TERRITORIES.

§ 483. The express grants which directly relate to this power are the following: "Congress shall have power. to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by

1 As a matter of curiosity, I refer to Ex parte Coupland, 26 Texas R. 386, in which the validity of the conscription law of the Confederate Congress is sustained.

cession of particular states, and the acceptance of Congress, become the seat of government of the United States; and to exercise like authority 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, dockyards, and other needful buildings." -(Article I. Sec. VIII.) "New states may be admitted by the Congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the Congress. The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular state." (Art. IV. Sec. III.) The grant to Congress of authority to declare war, and to the President of power to make treaties, should be read in this connection.

§ 484. The United States may hold two different species of rights and capacities over the territorial regions belonging to it, namely: (1.) A mere proprietory right, or the right to acquire and dispose of the property in the soil, as owner thereof; and (2) a political right of dominion, or the power to govern these particular portions of the whole country. Whatever may be the extent of these two classes of powers and attributes, the exercise of them belongs to Congress. shall consider them separately.

I. The Right of Proprietorship.

I

§ 485. When the Declaration of Independence dissolved the political connection between the colonies and Great Britain, most, if not all, the states had within their determinate boundaries certain amounts of undisposed lands, the proprietorship of which had resided in the Crown. It was assumed, by universal consent, that the title to these lands passed to the states in which they were respectively situated. But several of the states also laid claim to large tracts of unoccupied terri