Joseph Story was a member of the U.S. House of Representatives from Massachusetts’s 2nd district (May 23, 1808 – March 3, 1809), Associate Justice of the United States Supreme Court (November 18, 1811 – September 10, 1845), and is the author of the first comprehensive treatise ever written on the U.S. Constitution. Below is the section of Story’s Commentaries on the Constitution that deals with the District of Columbia when it was still a diamond on the map.
Daguerreotype of Joseph Story from the Library of Congress
BOOK III CHAPTER XXIII.
POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES.
Originally published in three volumes by Hilliard, Gray & Company, and Brown, Shattuck, & Co in 1833
§ 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, and 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 of 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 Debates 92, 321,322, 326.
3. The Federalist, No. 43; 2 Elliot’s Debates 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.