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.1

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 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

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

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. I shall consider them separately.

I. The Right of Proprietorship.

§ 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 territory lying to the west of their ascertained boundaries, but still embraced within the vague descriptions of their charters. The fact of possession of this land by some of the commonwealths was an obstacle to the formation of the loose government established by the Articles of Confederation. Those states which had none of this virgin soil insisted that, having been wrested from the ownership of the Crown, it became the property of the entire political society which revolted and thereby destroyed the former title; that the advantages flowing from its possession belonged to all the states in common; that the proceeds of its sale should go to defray the war expenses of all the thirteen communities which had shared a common danger and assumed a common burden. Maryland in particular was emphatic in maintaining these views, and refused to enter the Confederation until 1781, because their justice and correctness had not been recognized. Very naturally the states which claimed the separate ownership over the western regions asserted the validity of their chartered rights, and for a while were unwilling to part with any peculiar advantages which might result to themselves from such proprietorship.

§ 486. The Congress of the Confederation plainly adopted the view that this land belonged of right to the nation; for, on the 6th of September, 1780, they passed a resolution

strongly urging the states to cede the Western territory to the United States, and declaring that peace and union would be thereby promoted, and the credit of the government established. A second resolution of the 10th of October, 1780, pledged the faith of Congress that, if the cession were made as suggested, the lands should be disposed of for the common benefit of the United States, and be settled and formed into states which should become members of the Federal Union. These recommendations finally prevailed. New York and Virginia led the way, and other states followed their example. All had ceded their Western lands to the United States prior to the adoption of the Constitution, except North Carolina and Georgia. These two commonwealths completed the work immediately after the organization of the present government.

§ 487. This whole proceeding was national in its essential character; it assumed the existence of one nation, of which the states were subordinate parts; it resulted from a sentiment, somewhat undefined, but yet powerful, that the public domain belonged, not to some of the thirteen commonwealths, but to the one body politic which had revolted and declared itself independent. It is true that the process by which the result was reached was not entirely consistent with a perfected national theory; but it should be remembered that the whole organized government was a mass of glaring inconsistencies; that the people and the rulers were groping in the dark after the results of their positive acts. The nature of these results is plain, even though the path leading to them was somewhat tortuous. The Articles of Confederation recognized no United States except that "in Congress assembled," and gave to this Congress no power whatever to accept a cession of lands, or to hold and manage territory; but the existence of a nation back of this limited government, and of legislative powers in addition to those expressly conferred, was necessarily involved in the acts both of the states and of Congress.

§ 488. Upon the adoption of the Constitution, the United States was proprietor of the soil which had formerly belonged to the Crown, and over which the states had relinquished al

claim. By the Treaty of Paris (1803) the French Republic ceded the territory of Louisiana. By the treaty of Washing ton (1819) Spain ceded the Floridas. Vast additions of soil were subsequently acquired from Mexico as the result of conquest. Within the present year the Russian possessions in America have been added to our domain. Although the Constitution is silent in respect to the acquisition of new territory, yet all departments of the government, and the people themselves, have assented to the construction which finds the power plainly conferred by the organic law. Indeed, none but those who would interpret the Constitution as though it were a penal statute, have ever doubted the authority of the nation, through some one of its governmental agents, to acquire new territory and add it to the domain of the United States. Congress may declare war, and the President, as commander-in-chief, may wage war. One of the most common results of war is conquest; and unless the wars of this country are to be carried on differently from those of other nations, and unless we are to be deprived of the advantages of success, the possibility of conquest must be considered as included within the capacity to declare and wage war. The President, with the advice and consent of two thirds of the Senate, may make treaties. No kinds of treaties are specified ; no limitations are placed; the language is as broad as possible; indeed, these international compacts are expressly declared to be the supreme law of the land. No species of treaty is more common than that of cession; and unless we would interpolate a restriction which the language of the Constitution does not require, and thereby place the United States in a condition of inferiority to all other countries, we must admit that territory may be acquired by treaty. Not only have presidents and senates repeatedly adopted these conclusions; not only has Congress ratified them by its legislation; not only have the people gladly confirmed the acts of their political agents, but the Supreme Court has also added its authoritative sanction. In The American Insurance Co. v. Canter,1 the subject came before the court in such a manner

1 1 Pet. 511.