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the entire mass of the militia. The question, therefore, resolved itself practically into this, what should be the nature and extent of the control to be given to the general government, assuming that its control was to be applicable to the entire militia of the several States. This important question, involved in several distinct propositions, was referred to a grand committee of the States.1 It was by them that the plan was digested and arranged by which Congress now has the power 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 the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; 2-a provision that was adopted by a large majority of the States. The clause reported by the committee of detail was also adopted, by which Congress is enabled to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.3

The next subject in the order of the report made by the committee of detail was that general clause now found at the close of the enumeration of the express powers of Congress, which authorizes them "to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any depart

1 August 18. Elliot, V. 445.
2 Constitution, Art. I. § 8, cl. 16.

3 Art. I. § 8, cl. 15.

Ibid. p. 467.

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ment or officer thereof." Nothing occurred in the proceedings on this provision which throws any particular light upon its meaning, excepting a proposition to include in it, expressly, the power to "establish all offices" necessary to execute the powers of the Constitution; an addition which was not made, because it was considered to be already implied in the terms of the clause.2

The subjects of patents for useful inventions and of copyrights of authors appear to have been brought forward by Mr. Charles Pinckney. They gave rise to no discussion in the Convention, but were considered in a grand committee, with other matters, and there is no account of the views which they took of this interesting branch of the powers of Congress. We know, however, historically, that these were powers not only possessed by all the States, but exercised by some of them, before the Constitution of the United States was formed. Some of the States had general copyright laws, not unlike those which have since been enacted by Congress; but patents for useful inventions were granted by special acts of legislation in each case. When the power to legislate on these subjects was surrendered by the States to the general government, it was surrendered as a power to legislate for the purpose of securing a natural right to the fruits of mental labor. This was the view of it taken in the previous legislation

1 Constitution, Art. I. § 8, cl. 18. 2 Elliot, V. 447.

3 See the statutes of Massachu

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setts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78,

79.

of the States, by which the power conferred upon Congress must of course, to a large extent, be construed.

Such are the legislative powers of Congress, which are to be exercised within the States themselves; and it is at once obvious, that they constitute a government of limited authority. The question arises, then, whether that authority is anywhere full and complete, embracing all the powers of government and extending to all the objects of which it can take cognizance. It has already been seen, that, when provision was made for the future acquisition of a seat of government, exclusive legislation over the district that might be acquired for that purpose was conferred upon Congress.' In the same clause, the like authority was given over all places that might be purchased, with the consent of any State legislature, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. All the other places to which the authority of the United States can extend are included under the term "territories," which are out of the limits and jurisdiction of any State. As this is a subject which is intimately connected with the power to admit new States into the Union, we are now to consider the origin and history of the authority given to Congress for that purpose.

In examining the powers of Congress contained in the first article of the Constitution, the reader will not find any power to admit new States into the Union;

1 Ante, Chap. IX.

2 Elliot, V. 510, 511, 512.

and while he will find there the full legislative authority to govern the District of Columbia and certain other places ceded to the United States for particular purposes, of which I have already spoken, he will find no such authority there conferred in relation to the territory which had become the property of the United States by the cession of certain of the States before and after the adoption of the Articles of Confederation. If this power of legislation exists as to the territories, it is to be looked for in another connection; and although it is not the special province of this work to discuss questions of construction, it is proper here to state the history of those portions of the Constitution which relate to this branch of the authority of Congress.

In the first volume of this work, I have given an account of the origin of the Northwestern Territory, of its relations to the Union, and of the mode in which the federal Congress had dealt with it down. to the time when the national Convention was assembled. From the sources there referred to, and from others to which reference will now be made, it may be convenient to recapitulate what had been done or attempted by the Congress of the Confederation.

It appears that during the preparation of the Articles of Confederation an effort was made to include in them a grant of express power to the United States in Congress to ascertain and fix the western boundaries of the existing States, and to lay out the

1 Ante, Vol. I. Book III. ch. 5, p. 291 et seq.

territory beyond the boundaries that were to be thus ascertained into new States. This effort totally failed. It was founded upon the idea that the land beyond the rightful boundaries of the old States was already, or would by the proposed grant of power to ascertain those boundaries become, the common property of the Union. But the States, which then claimed an uncertain extension westward from their actual settlements, were not prepared for such an admission, or such a grant; and accordingly the Articles of Confederation, which were issued in 1777 and took effect in 1781, contained no express power to deal with landed property of the United States, and no provision which could safely be construed into a power to form and admit new States out of then unoccupied lands anywhere upon the continent. Still, the Articles were successively ratified by some of the States, and finally became established, in the express contemplation that the United States should be made the proprietor of such lands, by the cession of the States which claimed to hold them. In order to procure such cessions, as the means of inducing a unanimous accession to the confederacy, the Congress in 1780 passed a resolve, in which they promised to dispose of the lands for the common benefit of the United States, to settle and form them into distinct republican States, and to admit such States into the Union on an equal footing with its present members. The great cession by Virginia, made in 1784, was immediately

1 Resolve of October 10, 1780. Journals, VI. 325.

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