§ 236. “The Seat of Government.”

Sub-section i. gives the Federal Parliament exclusive authority to make laws with respect to the regulation and control of the seat of Federal Government. The Parliament will not, however, be able to exercise this power until the seat of Government is vested in the Commonwealth under the provisions of section 125. By sec. 125 the seat of Government must be determined by the Parliament; it must be within territory which shall have been granted to or acquired by the Commonwealth; it must be vested in and belong to the Commonwealth; it must be in the State of New South Wales, and be distant not less than 100 miles from Sydney. Such territory must contain an area of not less than 100 square miles, and such portion thereof as consists of Crown lands must be granted to the Commonwealth without any payment therefor. Within this territory, the State out of which it has been carved will cease to have even local jurisdiction; the Parliament of the Commonwealth alone will have exclusive power to make laws for its municipal and general government. As to the question of the representation of this territory in the Federal Parliament, see Note, § 473, infra.

The corresponding provision in the Constitution of the United States (Art. I. sec. viii. sub-s. 17) empowers Congress “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 government of the United States.”

Under this clause, Congress may constitute the District of Columbia a body corporate for municipal purposes, but can only authorize it to exercise municipal power. (Stoutenburgh v. Hennick, 129 U.S. 141. Baker, Annot. Const. p. 54.)

Within the District of Columbia, and the other places purchased and used for federal purposes, the national and municipal powers of government are united in the government of the Union. These are the only cases in which all the powers of government are so united. (Pollard v. Hagan, 3 How. 212. Id. p. 54.)

This power is conferred on Congress as the national legislature of the Union. In no other character can it be exercised. (Cohens v. Virginia, 6 Wheat. 424. Id. p. 55.)

This power includes the power to tax; hence Congress may levy a direct tax on the District of Columbia, in proportion to the census directed to be taken by the Constitution. (Loughborough v. Blake, 5 Wheat. 317. Id.)

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Courts established by federal legislation for the District of Columbia may issue all processes necessary to carry their orders into effect, and such process may be executed within any State. (United States v. Williams, 4 Cranch, C.C. 393. Id.)

Under this power Congress may authorize the municipal authorities of the city of Washington to provide for paving the streets of the city and to levy assessments on abutting property to pay for the same. (Willard v. Presbury, 14 Wall. 676. Id.)

An inhabitant of the District of Columbia, who there has his permanent abode, is not a citizen of a State. (Cissel v. McDonald, 16 Blatch. 150. Id.)

The sovereign power of the District of Columbia is lodged in the government of the United States and not in the corporation of the District. But the District municipal corporation is a person, and subject to suit, as any other municipality, and cannot claim exemption from the provisions of a statute of limitations on the ground that it is a department of the government of the United States. (Metropolitan R.R. Co. v. District of Columbia, 132 U.S. 1. Id. p. 56.)

“The principles laid down by the Supreme Court, that the exclusive legislative power involves exclusive jurisdiction, and that Congress is not the local legislature of the District, but possesses, as the national legislature, exclusive legislative power over it, have never been seriously assailed. The power of giving the city of Washington its own municipal government has therefore always been regarded as self-evident. On the contrary, the constitutionality of organizing the District into a territory, like the ordinary territories, has been disputed, because a partial delegation of the legislative power is inadmissible, on account of the expressly-stated exclusiveness of this power. It is, however, generally admitted that ‘exclusive’ does not mean the same as ‘unlimited.’ Congress cannot grant the inhabitants of the District any rights which, according to the general political nature of the Union, belong only to the population of the States—such, for instance, as representation in Congress, participation in the Presidential election, &c. And just as little can Congress rule the District without regard to the provisions of the so-called ‘bill of rights.’ But what Congress cannot do in regard to the District in matters not involving the rights of the States as such, that it also cannot do in reference to anybody or anything.” (Von Holst's Constitutional Law of the United States, p. 173.)

“Congress has tried all sorts of experiments as to the local government of the District, some of them with very unfortunate results. At present there are three commissioners at the head of the administration of the District. The inhabitants cannot well grieve over the loss of their short-lived enjoyment of a limited autonomy, for while their rights have again become more limited (necessarily so under the present system), their interests are better cared for. They must bear the same burdens as the rest of the people, have the same taxes to pay, and are bound to serve in the militia. But in spite of their full citizenship, political rights are withheld from them solely because they have their domicile at the seat of government. This is an anomaly that has never been justified theoretically, and its necessity—not to say its expediency—has become at least doubtful since the power of the Federal Government has become so firmly established and so far beyond the power of each separate. State. This anomaly, moreover. will always remain a thorn in the flesh of the American disciples of the doctrine of natural political rights. The creation of the District of Columbia is one of those steps which it is scarcely possible to retrace, even if the circumstances, which at one time made them seem wise, have given room to a completely changed state of things.” (Id. 173–4.)

“When the grant of an express power to incorporate a bank was proposed [in the American Federal Convention] Gouverneur Morris opposed it, observing that it was extremely doubtful whether the Constitution they were framing could ever be passed at all by the people of America; that to give it its best chance, however, they should make it as palatable as possible and put nothing into it not very essential which might raise up enemies. (Jefferson's Ana. Works, 1st ed. vol. ix. p. 191.) So Gouverneur Morris opposed the inclusion of an express grant of power to establish a university, saving, ‘It is not necessary. The exclusive power at the seat of Government will reach the object.”’ (Madison Papers; Elliot's Debates, 2nd ed. vol. v. p. 544. Foster, Const. I. p. 42.)