CHAPTER XXIII.



POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES.



§ 1211. The next power of congress is, "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 THE 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, and other needful

BUILDINGS."



§ 1212. This clause was not in the original draft of the constitution;

but was referred to a committee, who reported in its favour; and it was

adopted into the constitution with a slight amendment without any

apparent objection. [1]



§ 1213. The indispensable necessity of complete and exclusive power, on

the part of the congress, at the seat of government, carries its own

evidence with it. It is a power exercised by every legislature of the

Union, and one might say of the World, by virtue of its general

supremacy. Without it not only the public authorities might be insulted,

and their proceedings be interrupted with impunity; but the public

archives might be in danger of violation, and destruction, and a

dependence of the members of the national government on the state

authorities for protection in the discharge of their functions be

created, which would bring on the national councils the imputation of

being subjected to undue awe and influence, and might, in times of high

excitement, expose their lives to jeopardy. It never could be safe to

leave in possession of any state the exclusive power to decide, whether

the functionaries of the national government should have the moral or

physical power to perform their duties. [2] It might subject the

favoured state to the most unrelenting jealousy of the other states, and

introduce earnest controversies from time to time respecting the removal

of the seat of government.



§ 1214. Nor can the cession be justly an object of jealousy to any

state; or in the slightest degree impair its sovereignty. The ceded

district is of a very narrow extent; and it rests in the option of the

state, whether it shall be made or not. There can be little doubt, that

the inhabitants composing it would receive with thankfulness such a

blessing, since their own importance would be thereby increased, their

interests be subserved, and their rights be under the immediate

protection of the representatives of the whole Union. [3] It is not

improbable, that an occurrence, at the very close of the revolutionary

war, had a great effect in introducing this provision into the

constitution. At the period alluded to, the congress, then sitting at

Philadelphia, was surrounded and insulted by a small, but insolent body

of mutineers of the continental army. Congress applied to the executive

authority of Pennsylvania for defence; but, under the ill-conceived

constitution of the state at that time, the executive power was vested

in a council consisting of thirteen members; and they possessed, or

exhibited so little energy, and such apparent intimidation, that

congress indignantly removed to New-Jersey, whose inhabitants welcomed

them with promises of defending them. Congress remained for some time at

Princeton without being again insulted, till, for the sake of greater

convenience, they adjourned to Annapolis. The general dissatisfaction

with the proceedings of Pennsylvania, and the degrading spectacle of a

fugitive congress, were sufficiently striking to produce this remedy.

[4] Indeed, if such a lesson could have been lost upon the people, it

would have been as humiliating to their intelligence, as it would have

been offensive to their honour.



§ 1215. And yet this clause did not escape the common fate of most of

the powers of the national government. It was represented, as peculiarly

dangerous. It may, it was said, become a soft of public sanctuary, with

exclusive privileges and immunities of every sort. It may be the very

spot for the establishment of tyranny, mid of refuge of the oppressors

of the people. The inhabitants will be answerable to no laws, except

those of congress. A powerful army may be here kept on foot; and the

most oppressive and sanguinary laws may be passed to govern the

district. [5] Nay, at the distance of fourteen years after the

constitution had quietly gone into operation, and this power had been

acted upon with a moderation, as commendable, as it ought to be

satisfactory, a learned commentator expressed regret at the extent of

the power, and intimated in no inexplicit terms his fears for the

future. "A system of laws," says he, "incompatible with the nature and

principles of a representative democracy, though not likely to be

introduced at once, may be matured by degrees, and diffuse its influence

through the states, and finally lay the foundation of the most important

changes in the nature of the federal government. Let foreigners be

enabled to hold lands, and transmit them by inheritance, or devise; let

the preference to males, and the rights or primogeniture he revived with

the doctrine of entails; and aristocracy will neither want a ladder to

climb by, nor a base for its support. [6] "



§ 1216. What a superstructure to be erected on such a narrow foundation!

Several or the states now permit foreigners to hold and transmit lands;

and yet their liberties are not overwhelmed. The whole South, before the

revolution, allowed and cherished the system of primogeniture; and yet

they possessed, and transmitted to their children their colonial rights

and privileges, and achieved under this very system the independence of

the country. The system of entails is still the law of several of the

states; and yet no danger has yet assailed them. They possess, and enjoy

the fruits of republican industry and frugality, without any landed or

other aristocracy. And yet the petty district of ten miles square is to

overrule in its policy and legislation all, that is venerable and

admirable in state legislation! The states, and the people of the states

are represented in congress. The district has no representatives there;

but is subjected to the exclusive legislation of the former. And yet

congress, at home republican, will here nourish aristocracy. The states

will here lay the foundation for the destruction of their own

institutions, rights, and sovereignty. At home, they will follow the

legislation of the district, instead of guiding it by their precept and

example. They will choose to be the engines of tyranny and oppression in

the district, that they may become enslaved within their own territorial

sovereignty. What, but a disposition to indulge in all sorts of

delusions and alarms, could create such extraordinary flights of

imagination? Can such things be, and overcome us, like a summer's cloud,

without our special wonder? At this distance of time, it seems wholly

unnecessary to refute the suggestions, which have been so ingeniously

urged. If they prove any thing, they prove, that there ought to be no

government, because no persons can be found worthy of the trust.



§ 1217. The seat of government has now, for more than thirty years, been

permanently fixed on the river Potomac, on a tract of ten miles square,

ceded by the states of Virginia and Maryland. It was selected by that

great man, the boast of all America, the first in war, the first in

peace, and the first in the hearts of his countrymen. It bears his name;

it is the monument of his fame and wisdom. May it be for ever

consecrated to its present noble purpose, capitoli immobile saxum!



§ 1218. The inhabitants enjoy all their civil, religious, and political

rights. They live substantially under the same laws, as at the time of

the cession; such changes only having been made, as have been devised,

and sought by themselves. They are not indeed citizens of any state,

entitled to the privileges of such; but they are citizens of the United

States. They have no immediate representatives in congress. But they may

justly boast, that they live under a paternal government, attentive to

their wants, and zealous for their welfare. They, as yet, possess no

local legislature; and have, as yet, not desired to possess one. A

learned commentator has doubted, whether congress can create such a

legislature, because it is the delegation of a delegated authority. [7]

A very different opinion was expressed by the Federalist; for it was

said, that "a municipal legislature for local purposes, derived from

their own suffrages, will of course be allowed them." [8] In point of

fact, the corporations of the three cities within its limits possess and

exercise a delegated power of legislation under their charters, granted

by congress, to the full extent of their municipal wants, without any

constitutional scruple, or surmise of doubt.



§ 1219. The other part of the power, giving exclusive legislation over

places ceded for the erection of forts, magazines, &c., seems still more

necessary for the public convenience and safety. The public money

expended on such places, and the public property deposited in them, and

the nature of the military duties, which may be required there, all

demand, that they should be exempted from state authority. In truth, it

would be wholly improper, that places, on which the security of the

entire Union may depend, should be subjected to the control of any

member of it. The power, indeed, is wholly unexceptionable; since it can

only be exercised at the will of the state; and therefore it is placed

beyond all reasonable scruple. [9] Yet, it did not escape without the

scrutinizing jealousy of the opponents of the constitution, and was

denounced, as dangerous to state sovereignty. [10]



§ 1220. A great variety of cessions have been made by the states under

this power. And generally there has been a reservation of the right to

serve all state process, civil and criminal, upon persons found therein.

This reservation has not been thought at all inconsistent with the

provision of the constitution; for the state process, quoad hoc, becomes

the process of the United States, and the general power of exclusive

legislation remains with congress. Thus, these places are not capable of

being made a sanctuary for fugitives, to exempt them from acts done

within, and cognizable by, the states, to which the territory belonged;

and at the same time congress is enabled to accomplish the great objects

of the power. [11]



§ 1221. The power of Congress to exercise exclusive jurisdiction over

these ceded places is conferred on that body, as the legislature of the

Union; and cannot be exercised in any other character. A law passed in

pursuance of it is the supreme law of the land, and binding on all the

states, and cannot be defeated by them. The power to pass such a law

carries with it all the incidental powers to give it complete and

effectual execution; and such a law may be extended in its operation

incidentally throughout the United States, if congress think it

necessary so to do. But. if intended to have efficiency beyond the

district, language must be used in the act expressive of such an

intention; otherwise it will be deemed purely local. [12]



§ 1222. It follows from this review of the clause, that the states

cannot take cognizance of any acts done in the ceded places after the

cession; and, on the other hand, the inhabitants of those places cease

to be inhabitants of the state, and can no longer exercise any civil or

political rights under the laws of the state. [13] But if there has been

no cession by the state of the place, although it has been constantly

occupied and used, under purchase, or otherwise, by the United States

for a fort, arsenal, or other constitutional purpose, the state

jurisdiction still remains complete and perfect. [14]



§ 1223. Upon a recent occasion, the nature and effect of the exclusive

power of legislation, thus given by the constitution in these ceded

places, came under the consideration of the Supreme Court, and was much

discussed. It was argued, that all such legislation by congress was

purely local, like that exercised by a territorial legislature; and was

not to be deemed legislation by congress in the character of the

legislature of the Union. The object of the argument was to establish,

that a law, made in or for such ceded places, had no extra-territorial

force or obligation, it not being a law of the United States. The

reasoning of the court affirming, that such an act was a law of the

United States, and that congress in passing it acted, as the legislature

of the Union, can be best conveyed in their own language, and would be

impaired by an abridgment.



§ 1224. "In the enumeration of the powers of congress, which is made in

the eighth section of the first article, we find that of exercising

exclusive legislation over such district, as shall become the seat of

government. This power, like all others, which are specified, is

conferred on congress, as the legislature of the Union; for, strip them

of that character, and they would not possess it. In no other character

can it be exercised. In legislating for the district, they necessarily

preserve the character of the legislature of the Union; for it is in

that character alone, that the constitution confers on them this power

of exclusive legislation. This proposition need not be enforced. The

second clause of the sixth article declares, that 'this constitution,

and the laws of the United States, which shall be made in pursuance

thereof, shall be the supreme law of the land.' The clause, which gives

exclusive jurisdiction, is unquestionably a part of the constitution,

and, as such, binds all the United States. Those, who contend, that acts

of congress, made in pursuance of this power, do not, like acts made in

pursuance of other powers, bind the nation, ought to show some safe and

clear rule, which shall support this construction, and prove, that an

act of congress, clothed in all the forms, which attend other

legislative acts, and passed in virtue of a power conferred on, and

exercised by congress, as the legislature of the Union, is not a law of

the United States, and does not bind them.



§ 1225. "One of the gentlemen sought to illustrate his proposition, that

congress, when legislating for the district, assumed a distinct

character, and was reduced to a mere local legislature, whose laws could

possess no obligation out of the ten miles square, by a reference to the

complex character of this court. It is, they say, a court of common law,

and a court of equity. Its character, when sitting as a court of common

law, is as distinct from its character, when sitting as a court of

equity, as if the powers belonging to those departments were vested in

different tribunals. Though united in the same tribunal, they are never

confounded with each other. Without inquiring, how far the union of

different characters in one court may be applicable, in principle, to

the union in congress of the power of exclusive legislation in some

places, and of limited legislation in others, it may be observed, that

the forms of proceedings in a court of law are so totally unlike the

forms of proceedings in a court of equity, that a mere inspection of the

record gives decisive information of the character, in which the court

sits, and consequently of the extent of its powers. But if the forms of

proceeding were precisely the same, and the court the same, the

distinction would disappear.



§ 1226. "Since congress legislates in the same forms, and in the same

character, in virtue of powers of equal obligation conferred in the same

instrument, when exercising its exclusive powers of legislation, as well

as when exercising those, which are limited, we must inquire, whether

there be any thing in the nature of this exclusive legislation, which

necessarily confines the operation of the laws, made in virtue of this

power, to the place, with a view to which they are made. Connected with

the power to legislate within this district, is a similar power in

forts, arsenals, dock-yards, &c. Congress has a right to punish murder

in, a fort, or other place within its exclusive jurisdiction; but no

general right to punish murder committed within any of the states. In

the act for the punishment of crimes against the United States, murder

committed within a fort, or any other place or district of country,

under the sole and exclusive jurisdiction of the United States, is

punished with death. Thus congress legislates in the same act, under its

exclusive and its limited powers.



§ 1227. "The act proceeds to direct, that the body of the criminal,

after execution, may be delivered to a surgeon for dissection, and,

punishes any person, who shall rescue such body during its conveyance

from the place of execution to the surgeon, to whom it is to be

delivered. Let these actual provisions of the law, or any other

provisions, which can be made on the subject, be considered with a view

to the character, in which congress acts, when exercising its powers of

exclusive legislation. If congress is to be considered merely as a local

legislature, invested, as to this object, with powers limited to the

fort, or other place, in which the murder may be committed, if its

general powers cannot come in aid of these local powers, how can the

offence be tried in any other court, than that of the place, in which it

has been committed? How can the offender be conveyed to, or tried in,

any other place? How can he be executed elsewhere? How can his body be

conveyed through a country under the jurisdiction of another sovereign,

and the individual punished, who, within that jurisdiction, shall rescue

the body? Were any one state of the Union to pass a law for trying a

criminal in a court not created by itself, in a place not within its

jurisdiction, and direct the sentence to be executed without its

territory, we should all perceive, and acknowledge its incompetency to

such a course of legislation. If congress be not equally incompetent, it

is, because that body unites the powers of local legislation with those,

which are to operate through the Union, and may use the last in aid of

the first; or, because the power of exercising exclusive legislation

draws after it, as an incident, the power of making that legislation

effectual; and the incidental power may be exercised throughout the

Union, because the principal power is given to that body, as the

legislature of the Union.



§ 1228. "So, in the same act, a person, who, having knowledge of the

commission of murder, or other felony, on the high seas, or within any

fort, arsenal, dockyard, magazine, or other place, or district of

country within the sole and exclusive jurisdiction of the United States,

shall conceal the same, &c. he shall be adjudged guilty of misprision of

felony, and shall be adjudged to be imprisoned, &c. It is clear, that

congress cannot punish felonies generally; and, of consequence, cannot

punish misprision of felony. It is equally clear, that a state

legislature, the state of Maryland for example, cannot punish those,

who, in another state, conceal a felony committed in Maryland. How,

then, is it, that congress, legislating exclusively for a fort, punishes

those, who, out of that fort, conceal a felony committed within it?



§ 1229. "The solution, and the only solution of the difficulty, is, that

the power vested in congress, as the legislature of the United States,

to legislate exclusively within any place ceded by a state, carries with

it, as an incident, the right to make that power effectual. If a felon

escape out of the state, in which the act has been committed, the

government cannot pursue him into another state, and apprehend him

there; but must demand him from the executive power of that other state.

If congress were to be considered merely, as the local legislature for

the fort, or other place, in which the offence might be committed, then

this principle would apply to them, as to other local legislatures; and

the felon, who should escape out of the fort, or other place, in which

the felony may have been committed, could not be apprehended by the

marshal, but must be demanded from the executive of the state. But we

know, that the principle does not apply; and the reason is, that

congress is not a local legislature, but exercises this particular

power, like all its other powers, in its high character, as the

legislature of the Union. The American people thought it a necessary

power, and they conferred it for their own benefit. Being so conferred,

it carries with it all those incidental powers, which are necessary to

its complete and effectual execution.



§ 1230. "Whether any particular law be designed to operate without the

district or not, depends on the words of that law. If it be designed so

to operate, then the question, whether the power, so exercised, be

incidental to the power of exclusive legislation, and be warranted by

the constitution, requires a consideration of that instrument. In such

cases the constitution and the law must be compared and construed. This

is the exercise of jurisdiction. It is the only exercise of it, which is

allowed in such a case." [15]



____________



1. Journ. of Convent. 222, 260. 328, 329, 358.



2. The Federalist, No. 43; 2 Elliot's Deb. 92, 321,322, 326.



3. The Federalist, No. 43; 2 Elliot's Deb. 92, 321, 322, 326, 327.



4. Rawle on Const. ch. 9, p. 112, 113.



5. 2 Elliot's Debates, 320, 321, 323, 324, 325, 326; Id. 115. --

Amendments limiting the power of congress to such regulations, as

respect time police and good government of the district, were proposed

by several or the states at the time of the adoption of the

constitution. But they have been silently abandoned. 1 Tucker's Black.

Comm. App. 276, 374.



6. 1 Tucker's Black. Comm. App. 277.



7. 1 Tucker's Black. Comm. App. 278.



8. The Federalist. No. 43.



9. The Federalist, No. 43. See also United States v. Bevans, 3 Wheat. R.

336, 388.



10. 2 Elliot's Debates, 145.



11. Commonwealth v. Clary, 8 Mass. R. 72; United States v. Cornell, 2

Mason R. 60; Rawle on Constitution, ch. 27, p. 238; Sergeant on

Constitution, ch. 28, [ch. 30;] 1 Kent's Comm. Lect. 19, p. 402 to 404.



12. Cohens v. Virginia, 6 Wheat. R. 264, 424, 425, 426, 427, 428;

Sergeant on Constitution, ch. 28, [ch. 30 ;] 1 Kent. Comm. Lect. 19, p.

402 to 404; Rawle on Constitution, ch. 27, p. 238, 239; Loughborough v.

Blake, 5 Wheat. R. 322, 324.



13. 8 Mass. R. 72; 1 Hall's Journal of Jurisp. 53; 1 Kent's Comm. Lect.

19, p. 403, 404.



14. The People v. Godfrey, 17 Johns. R. 225; Commonwealth v. Young, 1

Hall's Journal of Jurisp. 47; 1 Kent's Comm. Lect. 19, p. 401, 404;

Sergeant on Constitution, ch. 28. [ch. 30 ;] Rawle on Constitution, ch.

27, p. 238 to 240.



15. Cohens, v. Virginia, 6 Wheat. R. 424 to 429.