Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 10 — Powers of Congress (cont.)]

9. Congress is moreover authorised to constitute tribunals inferior to the supreme court. [C. U. S. Art. 1. 8.] The third article of the constitution further declares, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts, as congress may from time to time, ordain, and establish .... The establishment of courts, is in England, a branch of the royal prerogative, which has in that country been, from time to time, very much abused; as in the establishment of the famous courts of high-commission, and of the star-chamber; two of the most infamous engines of oppression and tyranny; that ever were erected in any country. "The judges of which (as the statute for suppressing the former declares) undertook to punish, where no law did warrant, and the proceedings, and censures of which were an intollerable burthen upon the subject, and the means to introduce an arbitrary power and government." In England there are also courts of special-commission of oyer and terminer, (I do not here speak of the ordinary commissions of oyer and terminer and general goal delivery, under which, courts are held by the judges of the courts of Westminster-hall, at the assizes, in every county,) occasionally constituted for the special purpose of trying persons accused of treason, or rebellion, the judges of which, are frequently some of the great officers of state, associated with some of the judges of Westminster-hall, and others, whose commission determines as soon as the trial is over. Most of the state trials, have been had before courts thus constituted: and the number of convictions and condemnations in those courts is a sufficient proof how very exceptionable such tribunals are: or rather how dangerous to the lives and liberties of the people, a power to select particular persons, as judge. for the trial of state offences, must be, in any country, and under any possible form of government. In these cases, the offence is not only in theory, against the crown and government, but often, in fact, against the person, authority, and life of the ruling monarch. His great officers of state share with him in danger, and too probably in apprehension, and resentment. These are the judge, he selects, and from their hands expects security for himself and them. Whilst the frailties of human nature remain, can such a tribunal be deemed impartial? Wisely, then, did the constitution of the United States deny to the executive magistrate a power so truly formidable: wisely was the supreme federal legislature made the depositary of the power of establishing courts, inferior to the supreme court; and most wisely was it provided, that the judges of those courts, when once appointed by the president with the advice of the senate, should depend only on their good behaviour for their continuance in office, and be placed at once beyond the reach of hope or fear, where they might hold the balance of justice steadily in their hands.

These considerations induce a conviction in my mind, that this clause of the constitution does not authorise the establishment of occasional, or temporary courts, but courts of a permanent constitution and duration. Courts that could neither be affected in their conduct nor in their existence by the ferments or changes, of parties; and which might remain a monument to all posterity of the wisdom of that policy, which seperates the judiciary from the executive and legislative departments, and places it beyond the influence or control of either.

These remarks are offered in this place, only for the sake of method; it will be our duty to give the subject a fuller consideration elsewhere.

10. Congress have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. C. U. S. Art. 1. 8.

The definition of piracies, says the author of the Federalist, might perhaps, without inconvenience, be left to the law of nations: though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite, being a term of loose signification, even in the common law of England. The true ground of granting these powers to congress seems to be, the immediate and near connection and relation which they have to the regulation of commerce with foreign nations, which must necessarily be transacted by the communication on the high seas; and the right of deciding upon questions of war and peace, where the law of nations, is the only guide. Under this head, of offences against the law of nations, the violation of the rights of ambassadors, as also of passports, and safe conducts is included. The act of 1 cong. 2 sess. c. 9, embraces the whole.

And here we may remark by the way, the very guarded manner in which congress are vested with authority to legislate upon the subject of crimes, and misdemeanors. They are not entrusted with a general power over these subjects, but a few offences are selected from the great mass of crimes with which society may be infested, upon which, only, congress are authorised to prescribe the punishment, or define the offence. All felonies and offences committed upon land, in all cases not expressly enumerated, being reserved to the states respectively. From whence this corollary seems to follow. That all crimes cognizable by the federal courts (except such as are committed in places, the exclusive jurisdiction of which has been ceded to the federal government) must be previously defined, (except treason,) and the punishment thereof previously declared, by the federal legislature 206.

11. The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of the powers confided to congress 207; and happy it is for the people of America that it is so vested. The term war, embraces the extremes of human misery and iniquity, and is alike the offspring of the one and the parent of the other. What else is the history of war from the earliest ages to the present moment but an afflicting detail of the sufferings and calamites of mankind, resulting from the ambition, usurpation, animosities, resentments, piques, intrigues, avarice, rapacity, oppressions, murders, assassinations, and other crimes, of the few possessing power! How rare are the instances of a just war 208! How few of those which are thus denominated have had their existence in a national injury! The personal claims of the sovereign are confounded with the interests of the nation over which he presides, and his private grievances or complaints are transferred to the people; who are thus made the victims of a quarrel in which they have no part, until they become principals in it, by their sufferings. War would be banished from the face of the earth, were nations instead of princes to decide upon their necessity. Injustice can never be the collective sentiment of a people emerged from barbarism. Happy the nation the people are the arbiters of their own interest and their own conduct! Happy were it for the world, did the people of all nations possess this power.

In England the right of making war is in the king. In Sweden it was otherwise after the death of Charles XII. until the revolution in 1772, when from a limited monarchy, Sweden became subject to a despot 209. With us the representatives of the people have the right to decide this important question, conjunctively with the supreme executive who may, on this occasion as on every other, (except a proposal to amend the constitution,) exercise a qualified negative on the joint resolutions of congress; but this negative is unavailing if two thirds of the congress should persist in an opposite determination; so that it may be in the power of the executive to prevent, but not to make, a declaration of war 210.

The several states are not only prohibited from declaring war, but even from engaging in it, without consent of congress, unless actually invaded, or in such imminent danger as will not admit of delay 211. This is certainly a very wise prohibition .... in fact, every barrier which can be opposed to the hasty engaging in war, is so much gained in favour of the interests of humanity. Upon the same principle it seems to be, that the states are likewise prohibited from granting letters of marque and reprisal: a measure which not unfrequently precedes a declaration of war where individuals of one nation are oppressed or injured by those of another, and justice is denied by the state to which the author of such oppression or injury belongs 212. Did the several states possess the power of declaring war, or of commencing hostility without the consent of the whole, the union could never be secure of peace, and since the whole confederacy is responsible for any such act, it is strictly consonant with justice and sound policy, that the whole should determine on the occasion which may justify involving the nation in a war. The keeping up troops or ships of war in time of peace, is also prohibited to the several states upon the same principle. For these kinds of preparations for hostility are such as frequently may provoke, and even justify hostility on the part of other nations. But whenever war is actually declared, this prohibition ceases, and any state may adopt such additional measures for it's own peculiar defence as it's resources will enable it to do. The prohibition to emit bills of credit 213, must, however, infallibly narrow the means of recurring to these resources; a consequence which probably was not adverted to by the state conventions, as I do not recollect any amendments proposed on that subject.

The power of declaring war, with all it's immediate consequences, was granted to congress under the former confederation 214, and nearly the same restrictions against engaging in war, keeping up troops and vessels of war in time of peace, were laid upon, the individual states by the same instrument 215.

Among the amendments proposed by the convention of this state, and some others, to the constitution, there was one, "that no declaration of war should be made, nor any standing army or regular troops be raised or kept up, in time of peace, without the consent of two-thirds of the members present in both houses. And that no soldier should be enlisted for a longer term than four years, except in time of war, and then for no longer term than the continuance of the war 216." North-Carolina, as well as some other of the states, concurred in proposing similar amendments, but none has yet been made in this respect.

One of the most salutary provisions of the constitution, under this head, appears to be, that no appropriation of money to the use of an army, shall be for a longer term than two years 217. Perhaps it would have been better to have limited such an appropriation to a single year. But inasmuch as no appropriation can be made for a longer time than the period affixed for the duration of congress, it will be in the power of the people, should the reasons of such an appropriation be disapproved by them, to remove their representatives, on a new election, from a trust which they may appear willing to betray. It is, therefore, to be hoped, that such a consideration will afford a sufficient check to the proceedings of congress, in regard to the raising and supporting armies. With regard to a navy, the nature of such an establishment, to have any good effect, must be permanent. It would, therefore, have been extremely unwise to impose any prohibitions on that subject.

12. Congress has, moreover, 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, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress C. U. S. Art. 1, Sec. 8.

The objects of this clause of the constitution, although founded upon the principle of our state bill of rights, Art. 8, declaring, "that a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state," were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; "that each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same." A further amendment proposed, was, "that the militia should not be subject to martial law, except when in actual service, in time of war, rebellion, or invasion" .... A provision manifestly implied in the words of the constitution. As to the former of these amendments, all room for doubt, or uneasiness upon the subject, seems to be completely removed, by the fourth article of amendments to the constitution, since ratified, viz. "That a militia being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed." To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government. In pursuance of these powers, an act passed, 2 Cong. 1 Sess. c. 33, to provide for the national defence, by establishing an uniform militia throughout the United States; and the system of organization thereby established, has been carried into effect in Virginia, and probably in all the other states of the union.

Uniformity in the system of organization, and discipline of the militia, the constitutional defence of a free government is certainly desirable, and must be attended with beneficial effect, whenever the occasion may again require the co-operation of the militia of the states respectively. The want of power over these subjects, was one of the defects of the former system of government under the confederation; and the consequent want of uniformity of organization, and of discipline, among the several corps of militia drawn together from the several states, together with the uncertainty and variety of the periods of service, for which those corps were severally embodied, produced a very large portion of those disgraces, which attended the militia of almost every state, during the revolutionary war; and, thus contributed to swell the national debt, to an enormous size, by a fruitless expence. By authorising the federal government to provide for all these cases, we may reasonably hope, that the future operations of the militia of the confederated states, will justify the opinion, that they are the most safe, as well as most natural defence of a free state. An opinion, however, which will never be justified, if the duty of arming, organizing, training, and disciplining them, be neglected: a neglect the more unpardonable, as it will pave the way for standing armies; the most formidable of all enemies to genuine liberty in a state.

We have seen that the appointment of the officers of the militia, and the authority of training them, are expressly reserved to the states, by this article: this was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it.

Notwithstanding this wise precaution in the constitution, the fifth congress appear to have disregarded it, by authorising the president of the United States, to enlist and organize volunteers, or special corps of militia, whose officers HE was authorised to appoint, either by his own authority, or with the concurrence of the senate; they were likewise to be trained and disciplined in the manner which he should direct, and be liable to be called upon to do duty, at any time that he should judge proper, within two years after their acceptance, and be exempted, during the time of their engagement, from all militia duty, which might be required of them by the laws of the United States, or of any state, and from every line, penalty, or disability, provided to enforce the performance of any duty or service in the militia .... The number of these corps was at first unlimited 218, and the president was authorised to sell or lend them artillery, small-arms, accoutrements, from the public arsenals. L. U. S. 5 Cong. c. 64. Sec. 3, and c. 74 .... As these select corps were not called into actual service by those acts, but were only liable to be called upon at the pleasure of the president, it seems impossible to view them in any other light, than as a part of the militia of the states, separated by an unconstitutional act of congress, from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him, and an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States.

13. Congress have power to declare the punishment of treason, against the United States; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. C. U. S. Art. 3. Sec. 3. The act of 1 Cong. 2 Sess. c. 9. accordingly declares, that the punishment shall be death, by hanging; and that no conviction or judgment for treason, shall work any forfeiture of estate. The constitution. itself declares, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort: and that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The precise definition of treason, and the limitation of it to two cases, only, both of which are clearly and explicitly described, at once evince the prudence, caution, and wisdom, of the framers of the constitution, by shutting the door (as far as human prudence, and human foresight, could provide the means of doing so), against all possible cases of constructive treason. The many infamous acts of complying parliaments in England, during the reigns of the Tudors and other tyrannical princes, and the still more infamous and detestable decisions of servile and corrupt judges, from the days of Empson and Dudley, to those of the execrable Jefferies, must evince the necessity and propriety of such a limitation. From such corruption and servility, either in the legislature, or in the tribunals of justice, we may reasonably hope that this clause of the constitution will effectually guard and protect the United States. Nor should we forget, that the security of the citizen is still further ensured by that provision in the constitution, which declares that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. So that no extrajudicial confession, though proved by fifty witnesses, would, of itself, be evidence sufficient to convict a man upon a charge of treason. A provision which almost bids defiance to false witnesses .... The abolition of forfeiture, and of the corruption of blood, in cases of treason, is moreover a happy expedient for lessening the incentives, to prosecutions for treason, in corrupt governments. Rapacity is equally the cause and effect of tyranny. To curb every pretence for the exercise of it, should be the invariable object of a people forming a constitution. It is a monster that assumes a thousand shapes; of which the most odious, as well as the most terrible, is that, in which it attacks life, liberty and property, at the same time, and with the same weapons: its power is then irresistible.

14. Congress 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 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, dock-yards, and other needful buildings. C. U. S. Art. 1. . 8.

The exclusive right of legislation granted to congress by this clause of the constitution, is a power, probably, more extensive than it was in the contemplation of the framers of the constitution to grant: such, at least, was the construction which the convention of Virginia. They, therefore, proposed an article, as, an amendment to the constitution, declaring, "that the powers granted by this clause, should extend only to such regulations as respect the police, and good government thereof." The states of New-York and North-Carolina proposed similar amendments 219; and one to the like effect was actually proposed in the senate of the United States, but shared the fate of many others, whose object was to limit the exercise of power in the federal government.

I agree with the author of the Federalist 220, that a complete authority at the seat of government was necessary to secure the public authority from insult, and it's proceedings from interruption. But the amendment proposed by Virginia, certainly, would not have abridged the federal government of such an authority. A system of laws 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 it's 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 of primogeniture, be revived, together with the doctrine of entails, and aristocracy will neither want a ladder to climb by, nor a base for it's support. Many persons already possess an extent of territory in the United States, not inferior to in any of the German principalities: if they can be retained for a few generations, without a division, our posterity may count upon the revival of feudal principles, with feudal tenures.

The permanent seat for the government of the United States has been established under the authority of an act passed 1 Cong. 2 Sess. c. 28, and 3 Sess. c. 17, upon the river Potowmac, including the towns of Alexandria in Virginia, and Georgetown in Maryland. And the laws of Virginia (with some exceptions) were declared in force in that part of the ten miles square, which was ceded by Virginia, and those of Maryland in the other part, ceded by Maryland; and several other regulations were likewise established by two several acts, 6 Cong. 2 Sess. c. 15 and 24. An amendatory act passed also at the first session of the seventh congress, but the system does not appear to be as yet completely organized 221. It has been said, that it was in contemplation to establish a subordinate legislature, with a governor to preside over the district. But it seems highly questionable whether such a substitution of legislative authority is compatible with the constitution; unless it be supposed that a power to exercise exclusive legislation in all cases whatsoever, comprehends an authority to delegate that power to another subordinate body. If the maxim be sound, that a delegated authority cannot be transferred to another to exercise, the project here spoken of will probably never take effect. At present that part of the union is neither represented in the congress, nor in any state legislature; a circumstance, of which there seems to be some disposition to complain. An amendment of the constitution seems to be the only means of remedying this oversight.


206. See the opinion delivered by Judge Chase, in the federal circuit court of Pennsylvania, in the case of the United States vs. Worrel, 2 Dallas's Reports, 384.

207. C. U. S. Art. 1. Sec. 8.

208. Vattel, Lib. 3. Ch. 3.

209. Vattel, 439.

210. This is certainly the spirit of the constitution: but in the practical exercise of the functions of the president of the United States, it may be found to be in the power of that magistrate to provoke, though not to declare war.

211. C. U. S. Art. 1, Sec. 10.

212. 1 Blacks. Com. 258.

213. C. U. S. Art. 1, Sec. 9.

214. Confederation, Art. 9.

215. Ibidem, Art. 6.

216. Journals of the Virginia Convention, Art. 9, 10.

217. This restriction has proved illusory in practice; though congress are restricted from making any appropriation for the support of an army for more than two years, they have supposed themselves authorised to enlist an army for any period they may think proper, even in times of peace.

218. They were afterwards limited to 75,000 men. 5 cong. c. 137.

219. Amendments proposed by Virginia; Art. 12, by New York, Art. 11, and 12, by North-Carolina, Art. 13.

220. Federalist, Vol. 2. No. 43.

221. Having lately procured a copy of the acts passed at the first session of the seventh congress, I find that three acts were passed on the subject of the present seat of the government of the United States. The first, entitled "An act to abolish the board of commissioners in the city of Washington, and for other purposes." The second, "An act additional to, and amendatory of, an act, entitled, an act concerning the district of Columbia." And the third, an act to incorporate the inhabitants of the city of Washington, in the district of Columbia. L. U. S. 7 Cong. c. 41, 52, and 53. The latter is limited to two years, and from thence to the end of the next session of congress.


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