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the President, in the exercise of his war powers, may substitute martial law for civil law as far as the public exigencies may in his judgment require. For the time being, the written limitations upon his power are completely laid aside, and he appears in the role of an almost absolute dictator.
But Mr. John Quincy Adams voices the opinion of many, when he claims that these extraordinary powers are necessary implications of the authority to declare and carry on war :
“In the authority given to Congress by the Constitution of the United States to declare war, all the powers, incident to war, are by necessary implication conferred upon the government of the United States. Now, the powers incidental to war are derived, not from any internal municipal source, but from the laws and usages of nations. There are, then, in the authority of Congress and the Executive, two classes of powers, altogether different in their nature, and often incompatible with each other—the war power and the peace power. The peace power is limited by regulations and restraints, by provisions prescribed within the Constitution itself. The war power is limited only by the law and usages of nations. The power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, property, and life.'
From a speech delivered in 1836, and quoted by Mr. B. F. Butler in his argument for the government in the case of Ex parte Milligan, 4 Wall., 104.
CITIZENSHIP IN THE UNITED STATES.
The claim has already been made' that, while most of the principles entering into the composition of the American Constitution are neither original nor novel,—the American constitutions being evolutionary forms of the British Constitution,-yet, there are a few principles which first found expression and full realization in our constitutional history. It was also claimed that the novel principles of our constitutional systems have not been fully realized and properly appreciated, until years of experience revealed their true character and effect. One of these new principles was that of subjecting the same territory and the same people to the jurisdiction and control of two separate and autonomous governments, which, while they are bound together into one federal system of government, and divide the powers of government between them, are yet, in their own spheres, supreme and independent of each other, and
See ante Chapter II., p. 37.
? See ante Chapter II., p. 33.
both have the power to directly command and compel the obedience of the individual citizen.
It is hardly necessary to assert that this is the chief fundamental principle of the American constitutional system, the adoption of which radically changed the character of the Union, from a league of States to a composite State of States, or, to borrow the language of Chief-Justice Chase': “An indestructible Union composed of indestructible States.” Before the adoption of the principle, there was no Federal State, only a league, whose very life depended upon
and favor of the States; but, with its adoption, a Federal State was formed in such a mould, as it was thought and hoped, that it would not have the power to absorb, and destroy the autonomy of, the States. Therefore, with the adoption of the present Constitution of the United States, two separate governments came into being, the Federal and the State, each having its own separate sphere of action, and each in its sphere independent of the other. The Constitution does not explicitly make this declaration ; but it is a necessary consequence of the grant or reservation to each government of the power to act directly on the individual. The relations thus established between the individual and the two governments respectively, logically and necessarily make of the individual a citizen of each govern
1 Texas v. White, 7 Wall., 700, 725.
ment, so that a citizen of this country would be a citizen of the United States, as well as a citizen of the State in which he has his legal domicile.
The Constitution of the United States does not define or expressly recognize this dual citizenship, although both are inferentially recognized and referred to. It recognizes State citizenship in the clause,' which declares that “citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Federal citizenship, however uncertain may be the view then entertained of its character, is nevertheless recognized in those clauses which provided, that no one is eligible to the position of President “excepting a naturalborn citizen, or a citizen of the United States at the time of the adoption of the Constitution”?; of senator, unless he has been “nine years a citizen of the United States "'; or to the position of representative in Congress, unless he has been “seven years a citizen of the United States.". Like every other question which was raised before, and which divided, the constitutional convention, this was laid aside with a compromise, which constituted a partial and unsatisfactory recognition of the claims of both parties, the final settlement and adjustment of those claims being left to the future. It does not surprise
· Art. IV., sec. 2.
8 Art. I., sec. 3.
one, therefore, to learn that a definite settlement of the limitations of this dual citizenship was not attained until there had been seventy-five or eighty years of contention, when the dream of the Websters' was first fully realized, by the judicial recognition of the dual citizenship, with all its attending consequences.
For forty ycars after the adoption of the Constitution, party strife over the fundamental questions of our constitutional system was not active, and hence a clear definition of citizenship was not then attained. Justice Story, in his commentaries on the Constitution, said, concerning citizenship: “It has always been well understood among jurists in this country, that the citizens of each State constitute the bodypolitic of each community, called the people of the States; and that the citizens of each State in the Union are ipso facto citizens of the United States." It had also been held by Chief-Justice Marshall,” that a person, naturalized under the acts of Congress, became a citizen of the State in which he happened to reside.
But the question was not permitted to remain quietly in this unsettled condition, after the agitation in respect to slavery began. The State Rights' party were very plain in their claim of the limita
It will be remembered that the idea of a composite Federal State, with an independent autonomy for both Federal and State governments, originated with Pelatiah and Noah Webster. See ante Ch. II., p. 32.
? In Gassies r'. Ballon, 6 Pet., 761.