In three provisions of the Constitution grants of power are made to the General Government, whose field of action lies entirely outside of State jurisdiction, and hence here the Government operates as if there were no State citizenship known to our political system, and all the rights and obligations of citizenship were placed under its exclusive charge. The whole work of government is here in its hands.

One of these provisions confers on Congress the power of exclusive legislation in the district, not exceeding ten square miles, ceded and accepted for the seat of the Government of the United States, and a like power in all places purchased, with the consent of the legislature of the State in which they are located, for the erection of forts, magazines, arsenals, dock yards and other necessary buildings. In these localities the State governments have no existence, and, of course, State citizenship, as a distinct status, is here unknown. United States citizenship is the only one possible, and all rights, whether civil or political, that exist at all, are attached to it. Congress here has the power to do, and actually does many things which it has no power to do in the several States. Rights and duties which in the States exist under the State governments here come under the exclusive jurisdiction of the General Government. See United States v. Cornell, 2 Mass. 60; Cohens v. Virginia, 6 Wheat. 264; Loughborough v. Blake, 5 id. 317; 6 Op. At.Gen. 577; Op. Sup. Ct. Mass., 1 Metc. 580; Serg. Const. Law, 350, and Story's Const., § 1229.

*

A second provision gives to Congress the power to "make all needful rules and regulations respecting the territory * * belonging to the United States." This has been construed to mean absolute and exclusive jurisdiction over this entire territory, except as it may be qualified by the rights of Indian tribes residing therein. The only form of citizenship found here is that of the United States, and the only rights are such as the Constitution guarantees, or Congress chooses to establish and secure. The territorial governments exist by the authority of Congress, and are subject to its supervisory control. It may here in its discretion enact laws in respect to the inhabitants which it has no power to enact in respect to citizens residing in a State and living under a State government. A statute of Congress forbidding polygamy in the States would be unconstitutional, but not so if forbidding it in the territories of the United States. The usual rights and duties of State citizenship, as established by State constitutions and laws, so far as they have any existence, here relate to the status of United States citizenship, and come under the jurisdiction, either directly or indirectly, of the General Government. See American Ins. Co. v. Canter, 1 Pet. 511; United States v. Gratiot, 14 id. 526; Cross v. Harrison, 16 How. 85, and Story's Const., § 1325.

A third provision extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction." This applies to the high seas, and, as interpreted by Congress and the Supreme Court, includes also the navigable waters of the United States. Merchant ships and ships of war, when on the high seas, are, in the contemplation of law, a part of the territory of the country to which they belong. 8 Op. At.-Gen. 73. The laws of that country act upon them, and its power is pledged for their defense. The subjects embraced in the jurisdiction here granted are "collision, prize, salvage, seamen and shipping." Abb. Pr., vol. 1, p. 182. Captures jure belli, torts, injuries and maritime contracts as matters of purely civil cognizance, rights and duties pertaining to commerce and navigation, and also crimes on the high seas, come under this jurisdiction; and Congress is authorized to pass laws "necessary and proper" to carry it into effect. The jurisdiction follows the national flag with the powers of government; and whatever may be true as to a concurrent jurisdiction of the States on the navigable waters of the United States, it is certain that no such jurisdiction operates on the high seas. The States can neither punish crime nor protect rights beyond their own territory. State citizenship on the high seas has no existence. Nothing there appears but United States citizenship, and the whole duty of regulation and protection devolves upon the General Government by an express grant of the Constitution. Its powers of action are much more comprehensive under this grant than within the territory of a State. It is the business of a State, and not of the General Government, to punish theft or murder if committed on its own soil; but if the crime be committed on board of an American ship on the high seas, then it is the business of the General Government, and not of a State, to deal with the offender. The locality of the offense settles the question of jurisdiction. See The United States v. Bevans, 3 Wheat. 336; The United States v. Furlong, 5 id. 184, and United States v. Holmes, id. 412.

What the General Government can and should do under these three provisions of the Constitution is not to be taken as an example of what it can and should do when operating within the territorial limits of a State. In the district of Columbia, in military sites, in the territories of the United States, and over American ships on the high seas, it has the entire jurisdiction; yet the Constitution gives it no such power in the bosom of a State. It is a great mistake to assume that the General Government can do in the latter all the things which it can do in the former. The two cases are not parallel, and hence we cannot reason from the one to the othe Let Congress, for example, enact for the States e Revised Statutes which it has enacted for the District of Columbia; and it would not take the people

The Constitution evidently contemplates that the United States will occupy the position of a nation in the great family of nations, and be entitled to the rights and subject to the responsibilities of a nation, as established by international law. This is specially manifest in the powers bestowed upon the President of the United States. He is authorized to make treaties, and to nominate and appoint ambassadors, other public ministers and consuls, subject to the advice and consent of the Senate. He is charged with the duty of receiving ambassadors and other public ministers. And while the declaration of war and the granting of letters of marque and reprisal belong exclusively to Congress, the President is made the Commander-in-Chief of the army and navy of the United States. These features point clearly to the idea of a nation, holding the relations of peace or war, as the case may be, to the other nations of the earth.

It is true that the Government of the United States has no jurisdiction in other countries, except as the same may be acquired by arms, or by treaties in the establishment of consular or other courts; yet, because it is a National Government, and recognized as such in the family of nations, it assumes and enforces the right, under the law of nations, to extend its protection to citizens of the United States when in other countries. This protection does not exempt them from a just and proper obedience to foreign authorities when within their jurisdiction. But it does seek to defend them against any wrongful action of these authorities; and what is such action is a question to be settled by the established usages of civilized nations. The international remedy for any such wrong consists in holding the foreign nation responsible for it, in demanding an apology, and perhaps the punishment of the direct offender or offenders, and in requiring reparation when the wrong admits of this mode of relief; and, if the proper redress be refused, then the wrong may be made an occasion for a declaration of war. It is in this way that nations defend their own citizens or subjects when in foreign countries. International law, and not State constitutions, or even the Constitution of the United States, furnishes the rule of the rights to be defended, and the mode of the defense, whenever the Federal Government has occasion to deal with such a question.

In the Code of International Jurisprudence State citizenship, in the American sense, with its rights and its remedies, is absolutely out of sight; and that of the United States is the only citizenship known. And even this citizenship carries with it into other countries only such privileges and immunities as international law accords, or as treaties may have secured. The Constitution of the United States does not operate in Great Britain or in France.

American citizen. What does operate is the law of nations; and it is under this law, established by the general consent of nations, that the United States will judge whether the rights of its citizens have been violated, and if so, decide what remedies shall be applied to the case. Such a violation is deemed a national offense; and the difficulty arising therefrom must be settled by diplomacy or war.

If a United States citizen, being a citizen of a State, should in that State be robbed or murdered, the General Government would have no power to bring the offender to justice, or demand redress from the State. International law does not operate in this case at all. The question is purely one of local and municipal law; and it so happens that the Constitution assumes that the State itself will attend to the business of punishing the crime, and does not commit to the United States any power or duty in respect to it.

But if the rights of a United States citizen, as expounded by international law, should be outraged by Great Britain or France, especially by the public authorities, then, while no State in this country would have any thing to do with the subject, even if the person injured were a State citizen, the General Government, being informed of the facts, would interpose with its remonstrance, and, if necessary, with its sword. What it could do in thus defending a citizen is no criterion of what it could do if a similar wrong were located in a State. Its powers of action are widely different in the two cases. Those who assume that the General Government can and should, by the agency of legislation and courts operative in the States, protect precisely the same rights which it claims the power to protect in foreign countries, overlook the fact that this Government, when acting within the boundaries of the State governments is limited by a specific enumeration of powers, and that it cannot exceed this enumeration without itself becoming a trespasser. The Constitution leaves a large body of rights to be defined and protected by the State governments; and in respect to these rights the General Government has no jurisdiction whatever, and hence no duty to perform. Restraints imposed upon State power it may enforce; but it cannot exercise that power or undertake to discharge its duties.

Our duplicate system of a General Government for certain defined and limited purposes, and of State Governments for other and different purposes, and of both simultaneously operating in the same territory and upon the same people, would involve confusion and, finally, destruction of one or both, if it did not assign to each a specific sphere of action, and exclude each from the sphere of the other. The Constitution expects each to be content with its own powers, and each to leave the other to the exercise of those powers. It is no part of its theory

that if a State Government ought to hang a man but does not, the General Government should furnish the court, the sheriff, and the gallows, and do the hanging. It is no part of its theory that the General Government should, within the States, do what, as a National Government acting under the law of nations, it assumes the power to do when protecting citizens of the United States in foreign

countries. Not to see the distinction between these

bility, however, is measured more by causes than by consequences, and in the present instance it must fall where the argument failed. If the army had been abused, and the clause proposed would have afforded a remedy, and was within the competency of Congress, the House was right; if, on the other hand, Congress was not competent, the Senate was right. Nobody in either House, whatever may have been the private opinions of members, denied the existence of the abuse, or that the remedy proposed was direct and complete; the point, and the only point pressed in de

THE ARMY BILL.

To the Editor of the Albany Law Journal:

SIR-The Forty-fourth Congress will always be memorable for two collisions between the two Houses, one in respect to the counting of the electoral votes and the other in respect to the bill for the support of the army. The two measures, though independent in their reasons, were, nevertheless, strangely related. On the first occasion the Senate and the House stood directly at variance regarding the votes of some of the States, but having previously agreed to abide by the advice of an electoral commission, the views of the Senate prevailed, and the votes which it claimed were counted. On the second occasion, the Senate having insisted upon striking from the bill for the support of the army a provision, which the House had inserted, with the view of preventing an abuse of the service, already carried to the extent of falsifying the electoral votes of two, at least, of the States, the House maintained its position, and the result was, of course, the failure of the bill.

The provision which the House had inserted was the following:

"SEC. 5. That no part of the money appropriated by this act, nor any money heretofore appropriated, shall be applied to the pay, subsistence or transportation of troops used, employed, or to be used or employed, in support of the claim of Francis T. Nicholls or S. B. Packard, to be Governor of the State of Louisiana. Nor shall any of said money be applied in support of the claim of the two bodies claiming to be the legislature of said State, presided over, respectively, by L. A. Wiltz and Louis Bush; nor of the two bodies claiming to be the legislature of said State, presided over, respectively, by C. C. Antoine and Michael Hahn; nor in support of the claim of Thomas C. Manning and associates to be the Supreme Court of said State; nor in support of the claim of John T. Ludeling and associates to be the Supreme Court of said State; nor in aid of the execution of any process in the hands of the United States Marshal in said State issued in aid of and for the support of any such claims. Nor shall the army, or any portion of it, be used in support of the claims, or pretended claim or claims, of any State government, or officer thereof, in any State, until such government shall have been duly recognized by Congress. And any person offending against any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned at hard labor for not less than five nor more than ten years."

Upon the objection of the Senate, three successive committees of conference were appointed, but all of them failed.

The responsibility for the failure was charged by the House upon the Senate, and by the Senate upon the House; by the democrats upon the republicans, and by the republicans upon the democrats. Responsi

provisions of the Constitution. A few extracts from the speeches against the measure will make this evident.

In the Senate Mr. Blaine said: "I have a very great desire that the Army Bill should pass, without any angry discussion, or without any introduction of the controverted points that lie just in that section. I have very decided views upon the subject, but I do not know that the expression of them would do any good. I cannot believe that there is a lawyer on either side of this chamber who will assert in his place that he believes that the Congress of the United States has the right to say to the President, who, by the Constitution, is the Commander-in-Chief of the Army and Navy, that, in a particular exigency, he shall not command the army, and in another exigency, he shall command it in a certain way. If that does not constitute a clear invasion of the powers of the President, conferred upon him by the organic law of the land, then I cannot read it. The Senator from Delaware must know, and himself see that, with that provision in the bill, it would be simply impossible to get the army appropriation bill passed

Mr. Bayard. And yet the Senator understands that the power of Congress to regulate the use of the army is undoubted

Mr. Blaine. It is perfectly undoubted that the President of the United States must command the army, under the provisions of law, but that is a very different thing from saying, that in a particular instance you shall command the army in this way, and in another particular instance you shall not command it in that way. I think the Senator from Delaware does not need to be reminded that there is a world-wide distinction just there, and one which I am very sure he would not cross."

In the House Mr. Banks said: "But there are some things which are not within the power of the two Houses of Congress, and among these is the command of the army. * ** 'The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.' That is the language of the Constitution (sec. 2, art. 2). Congress has 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 (sec. 8, art. 1). Undoubtedly it has the same power in regard to the Regular Army of the United States; but its command is given to the President. It is the duty of the United States to 'guarantee to every State in this Union a republican form of government,' and 'on application of the legislature, or of the executive when the legislature cannot be convened.' to protect each of them against invasion and domestic violence. Whatever power is given in the Constitution for this purpose is given to Congress

and the President, but the command of the army is nevertheless in the President."

Mr. Garfield said: But coming back to the constitutional question, the passage of this clause in the Army bill is absolutely impossible. We cannot, under any circumstances, consent to do what we know to be unconstitutional, and believe to be dishonorable."

Whether these eminent members of Congress, and representatives of their party, were of one mind in their reasons for the conclusion, or not, they all agreed in the conclusion itself, that the clause in controversy was an invasion of the constitutional rights of the President.

Such were the words uttered in debate. But, lest they be treated as unguarded utterances, in the heat of the moment, let us turn to more deliberate ones since of the same gentlemen or their party supporters. Mr. Morton has repeated, ou at least two occasions, that he thinks the measure of the House an unconstitutional interference with the President's prerogative. The late Republican convention in Maine, in which Mr. Blaine took an active part, resolved as follows:

withhold all arms of the United States distributed in, or to said Territory, in pursuance of any law of the United States authorizing the distribution of arms to the States and Territories."

This was rejected by the Senate, and the House not receding, the bill was lost. I have said that the question of 1856 was similar to that of 1877, but they were by no means identical. The Democrats had more reason for rejecting the proposed restriction in the first instance, than the Republicans had in the last. Kansas was a Territory, while Louisiana is a State, and the authority of the Federal government to control the Territories, in all things, is as clear as its want of authority to control the States in their State affairs. In the Kansas controversy Mr. Seward stated his position thus:

The Penn. Monthly, a journal of deserved reputation, takes a similar view. Indeed, I have yet to see the first line written, or to hear the first word spoken by a Republican in favor of the provision, or against the action of the Senate.

Because of the failure of this bill, an extra session of Congress has been called to be held in October. The question between the two houses is, therefore, as imminent as it is important. Considered as a question of constitutional right, there is scarcely another of greater magnitude; considered as a practical question to be decided by the two houses within a few months, it is one of the most urgent of all questions before the country. Let us discuss it, if we can, with no thought of its effect upon parties, and solely as a question of liberty and constitutional law.

Once before, and once only, has there been a disagreement between the two houses of Congress on a similar question. That occurred in 1856, when the troubles in Kansas were at their height. On that occasion the position of parties was reversed. The Republicans, having a majority in the House, inserted the following clause in the Army appropriation bill:

"That no part of the military force of the United States, for the support of which appropriations are made by this act, shall be employed in aid of the enforcement of any enactment of the body claiming to be the Territorial Legislature of Kansas, until such enactment shall have been affirmed and approved by Congress; but this proviso shall not be so construed as to prevent the President from employing there an adequate military force, but it shall be his duty to employ such force to prevent the invasion of said Territory by armed bands of non-residents, or any other body of non-residents, acting or claiming to act as a posse comitatus of any officer in said Territory in the enforcement of any such enactments, and to protect the persons and property therein, and upon the national highways leading to said Territory, from all unlawful searches and seizures; and it shall be his further duty to take efficient measures to compel the return of, and

The precise question involved in the present controversy is, the power of Congress to prevent the use of the army to dispose of the title to State offices. The contention of the House, as stated in the general words of the section, was that the army should not "be used in support of the claim, or pretended claim or claims of any State government or officer thereof, in any State, until such government shall have been duly recognized by Congress;" while on the other side the contention of the Senate was that the section was an invasion of the constitutional rights of the President.

This position of the Senate involves one of two propositions, either that it is the constitutional right of the President, rather than Congress, to determine the rightful government of a State, or that it is his constitutional right to use the army in support of the claim of a State government or officer whose title Congress refuses to recognize. Both of these propositions, I venture to affirm, are not only unsupported by the Constitution, but plainly repugnant to it.

It will, I am confident, be found, upon examination, that the only authority which the President ever had to decide a question of title to any State office, was a mere incident to his authority to intervene for the protection of the State from domestic violence, and that his only authority for such intervention has been derived, not from the Constitution, but from an act of Congress, which, of course, Congress can continue or discontinue at its mere will and pleasure. What it gave it can assuredly take away. And I am equally confident that the only function of the President in respect to the army is to take command of such troops as Congress may choose to raise for any service which it deems proper, and in the capacity of their first General, direct their military operations incident to such service. In the exercise of his function as general or general-in-chief, he is subject, like any other general, to the law of the land. While Congress cannot deprive him of his command, it can make laws which he must obey, and he must, in all things, conform himself to such regulations as Congress may see fit to impose.

It should have been sufficient, for an answer to both the propositions involved in the claim of the Senate,