and support armies; to provide for and maintain a navy; to provide for organizing, arming and disciplining the militia, and calling the militia into the service of the United States; to make rules for the government and regulation of the land and naval forces and of the militia when in the service of the United States. The power to construct the entire military system of the United States, both land and naval, is thus conferred upon the Congress with but a single limitation, viz; that the army appropriation shall not at any one time provide for a longer period than two years.2 The only limits to the military power which Congress may create, are physical ones. The manner of recruitment of the forces is subject to its own discretion. It is placed under no restrictions in the enactment of the laws for the government of the forces or of the code of tactics for their discipline. There is an apparent limitation upon its power to provide for the calling of the militia into the service of the United States. It is contained in the latter part of the clause vesting this power, and defines the purpose for which it may be exercised, viz; "to execute the laws of the Union, suppress insurrection and repel invasions." 3 But this is no real limitation, since the definition comprehends all conceivable purposes for which the military power can be naturally used. Moreover, Congress may bring every arms-bearing person into the service of the United States in another form of organization than militia, ie. in a form of organization not requiring, at any point, the participation of the commonwealths. The commonwealths are expressly prohibited from keeping a standing army or ships of war, in time of peace, without the consent of the Congress. What they may do in this respect, in time of war, is not provided in the constitution, but the fact that, in time of war, the general government may assume dictatorial

1 United States Constitution, Art. I, sec. 8, §§ 12-16.

2 Ibid. Art. I, sec. 8, § 12. 8 Ibid. Art. I, sec. 8, § 15.

4 Ibid. Art. I, sec. 10, § 3.

powers puts this question, so far as law is concerned, in the discretion of the general government.

The Court has gone so far as to express the opinion that the commonwealths cannot even obstruct the powers of Congress in the creation of military forces by prohibiting the people from keeping and bearing arms. The constitution forbids the general government to infringe upon the right of the people to keep and bear arms, but this provision cannot be invoked against the attempt of a commonwealth to do the same thing. The inhibition upon the commonwealth is derived from the power of the Congress to construct the whole military organization of the United States. It is thus, at last, manifest that Congress has complete and exclusive control in the construction, organization and government of the whole military system and force of the United States. It is empowered by the constitution to do everything in regard to the military system which can be accomplished by legislation; i.e. it may do everything, except assume the functions of executive commandership. Those belong, as we have seen, to the President. What these functions are, in detail, which the constitution prohibits the Congress from exercising, by expressly vesting the power to exercise them in the President, I elsewhere attempt to point out. I will only say here that from the order of arrangement of the provisions of the constitution, it would appear that one function naturally belonging to commandership appears to be conferred upon the Congress, viz; the power to suspend “the privilege of the writ of habeas corpus." The constitution does not expressly vest this power in the Congress or in any other organ. It simply declares that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." 3

1 Presser v. Illinois, 116 U. S. Reports, 252.

2 Ibid.

8 United States Constitution, Art. I, sec. 9, § 2.

This clause is contained in that article of the constitution which treats of the Congress. For this, among other reasons, it is held by many students of the constitution that the power to suspend the privilege of this writ is conferred upon the Congress. As we have seen, both the Congress and the President have exercised the power. It may be that the framers intended it to be a power of the Congress only; if such be the case, I think their political science upon this point was bad. I regard the power to suspend the privilege of the writ of habeas corpus as belonging to the general power of establishing martial law, and I think I have demonstrated that this power belongs to the President alone as commanderin-chief. Martial law is simply the suspension of ordinary law. It may be in whole or in part, in one district or another, as the exigencies of the moment may require. A military power dependent upon the exigencies of the moment cannot, in good political science, be held by the legislative department and exercised by legislation. It belongs, naturally, to the executive. Moreover, the suspension of ordinary law by a statute is far more dangerous to liberty than its suspension by executive command. The statutory suspension is far more permanent and wide-reaching in its effect, and it relieves the executive of the responsibility necessary to the moderate and judicious exercise of dictatorial power.

II. Legislation in respect to the Organization and Procedure of the Courts.

The constitution expressly vests in Congress the power to constitute tribunals inferior to the Supreme Court.1 With the exception of the Supreme Court, the whole judicial system of the general government is thus subject to the legis lation of Congress. Congress ought to create a sufficient number of inferior courts to do, with the Supreme Court, the whole judicial business of the general government; but if Congress should create no inferior courts, there is no method

1 United States Constitution, Art. I, sec. 8, § 9.

of redress provided by the constitution save the elections. The courts once established, however, and the judgeships created, endowed and filled, Congress may not so abolish these offices as to deprive the incumbents of their compensation, either in whole or in part, during their good behavior; i.e. during their lives, unless they resign or are expelled from office by a judgment upon impeachment.1

The constitution impliedly vests the Congress with the power to create the judgeships of the Supreme Court and endow them. The language of the constitution is that "the judicial power of the United States shall be vested in one Supreme Court," 2 etc. The Supreme Court itself seems thus to be created by the constitution and, therefore, not subject to any power of Congress to constitute or abolish it; but the constitution does not itself create the judgeships in this Court nor expressly declare what organ shall do so. Without the judgeships, however, the Court would be only an abstraction. From the clause which alludes to the general power of the Congress to provide for the establishment of all offices not established by the constitution and for the method of filling the inferior offices,3 we infer that the Congress is vested with the power to create the judgeships of the Supreme Court in such number as it shall deem proper. Once established, however, and filled, the Congress has no power to abolish them during the good behavior of the existing incumbents. (i.e. during their lives, unless they resign or are removed by judgment upon impeachment) nor to diminish the compensation attached thereto. It is a question whether Congress has the power to abolish the judgeships of this Court at the legal expiration of the respective terms of the existing incumbents. It seems to me that it has, although this might reduce the Supreme Court to an abstraction again. The Congress ought, certainly, to maintain these offices in suffi

1 United States Constitution, Art. III, sec. I.

cient number to do the business of the Court; but if it should not do so, I see no redress save at the elections. The only imperative command which the constitution issues to the Congress upon this subject is that there shall be but one Supreme Court. Judicial unity is absolutely required, but everything else is left to the discretion of the legislative body.

The constitution, further, expressly confers upon the Congress the power to regulate the appeal and removal of causes from the courts of the commonwealths, and from the inferior courts of the general government, to the Supreme Court.1 This is also a discretionary power in the Congress. There is no doubt that Congress is under a stronger moral obligation to act when its action is necessary for the completion and regulation of the governmental machinery than when it has to deal with questions of policy merely, or even of individual rights; but it is placed under no stronger legal obligations. By inaction it may thus defeat many of the fundamental purposes of the constitution without any redress, except such as may be secured at the elections.

The constitution also expressly vests the Congress with the power to prescribe the manner in which the acts, records and proceedings of any commonwealth shall be proved in every other commonwealth, and the effect of the same, and impliedly confers the power to provide rules for the return of fugitives from the justice of one commonwealth who have sought asylum in another. The exercise of these powers also is discretionary with the Congress, although the failure to make such provisions would create great difficulty and confusion. In the absence of such provisions we should be forced to have recourse to the principles of international law to guide us in regard to matters of internal concern.

Of course all the powers included under this eleventh topic are subject to the exclusive legislation of the Congress

1 United States Constitution, Art. II, sec. 2, § 2.