[Footnote B: These two verses are so explicit we quote them entire--"And

it shall be if thou do at all forget the Lord they God and walk after

other Gods and serve them, and worship them, I testify against you this

day that ye shall surely _perish_, as the nations which the Lord

destroyed before your face, _so_ shall ye perish." The following

passages are, if possible still more explicit--"The Lord shall send upon

thee cursing, vexation and rebuke in all that thou settest thine hand

unto for to do, until thou be _destroyed_, and until thou perish

quickly." "The Lord shall make the pestilence cleave unto thee until he

have _consumed_ thee." "They (the 'sword,' 'blasting,' &c.) shall pursue

thee until thou _perish_." "From heaven shall it come down upon thee

until thou be _destroyed_." "All these curses shall come upon thee till

thou be _destroyed_." "He shall put a yoke of iron upon thy neck until

he have _destroyed_ thee." "The Lord shall bring a nation against thee,

a nation of fierce countenance, which shall not regard the person of the

old, nor show favor to the young, * * until he have _destroyed_ thee."

All these, with other similar threatenings of _destruction_, are

contained in the twenty-eighth chapter of Deut. See verses 20-25, 45,

48, 51. In the _same_ chapter God declares that as a punishment for the

same transgressions, the Israelites shall "be _removed_ into all the

kingdoms of the earth," thus showing that the terms employed in the

other verses, "destroy," "perish," "perish quickly," "consume," &c.,

instead of signifying utter, personal destruction doubtless meant their

destruction as an independent nation. In Josh. xxiv. 8, 18, "destroyed"

and "drave out," are used synonymously.]

[Footnote C: Perhaps it will be objected, that the preservation of the

Gibeonites, and of Rahab and her kindred, was a violation of the command

of God. We answer, if it had been, we might expect some such intimation.

If God had straitly commanded them to _exterminate all the Canaanites_,

their pledge to save them alive, was neither a repeal of the statute,

nor absolution for the breach of it. If _unconditional destruction_ was

the import of the command, would God have permitted such an act to pass

without rebuke? Would he have established such a precedent when Israel

had hardly passed the threshold of Canaan, and was then striking the

first blow of a half century war? What if they _had_ passed their word

to Rahab and the Gibeonites? Was that more binding than God's command?

So Saul seems to have passed _his_ word to Agag; yet Samuel hewed him in

pieces, because in saving his life, Saul had violated God's command.

When Saul sought to slay the Gibeonites in "his zeal for the children of

Israel and Judah," God sent upon Israel a three years' famine for it.

When David inquired of them what atonement he should make, they say,

"The man that devised against us, that we should be destroyed from

_remaining in any of the coast of Israel_, let seven of his sons be

delivered," &c. 2 Sam. xxi. 1-6.]

[Footnote D: If the Canaanites were devoted by God to unconditional

extermination, to have employed them in the erection of the

temple,--what was it but the climax of impiety? As well might they

pollute its altars with swine's flesh or make their sons pass through

the fire to Moloch.]

[Footnote E: Suppose all the Canaanitish nations had abandoned their

territory at the tidings of Israel's approach, did God's command require

the Israelites to chase them to ends of the earth, and hunt them out,

until every Canaanite was destroyed? It is too preposterous for belief,

and yet it follows legitimately from that construction, which interprets

the terms "consume," "destroy," "destroy utterly," &c. to mean

unconditional, individual extermination.]

[The original design of the preceding Inquiry embraced a much wider

range of topics. It was soon found, however, that to fill up the outline

would be to make a volume. Much of the foregoing has therefore been

thrown into a mere series of _indices_, to trains of thought and classes

of proof, which, however limited or imperfect, may perhaps, afford some

facilities to those who have little leisure for protracted

investigation.]

NO. 5.

THE

ANTI-SLAVERY EXAMINER.

THE

POWER OF CONGRESS

OVER THE

DISTRICT OF COLUMBIA.

* * * * *

REPRINTED FROM THE NEW-YORK EVENING POST, WITH ADDITIONS BY THE AUTHOR.

* * * * *

NEW-YORK:

PUBLISHED BY THE AMERICAN ANTI-SLAVERY SOCIETY,

NO. 143 NASSAU-STREET.

1838.

* * * * *

This periodical contains 3 1/2 sheets.--Postage under 100 miles, 6 cts.;

over 100, 10 cts.

POWER OF CONGRESS

OVER THE

DISTRICT OF COLUMBIA.

A civilized community presupposes a government of law. If that

government be a republic, its citizens are the sole _sources_, as well

as the _subjects_ of its power. Its constitution is their bill of

directions to their own agents--a grant authorizing the exercise of

certain powers, and prohibiting that of others. In the Constitution of

the United States, whatever else may be obscure, the clause granting

power to Congress over the Federal District may well defy

misconstruction. Art. 1, Sec. 6, Clause 18: "The Congress shall have

power to exercise exclusive legislation, _in all cases whatsoever_, over

such District." Congress may make laws for the District "in all

_cases_," not of all _kinds_; not all _laws_ whatsoever, but laws "in

all _cases_ whatsoever." The grant respects the _subjects_ of

legislation, _not_ the moral nature of the laws. The law-making power

every where is subject to _moral_ restrictions, whether limited by

constitutions or not. No legislature can authorize murder, nor make

honesty penal, nor virtue a crime, nor exact impossibilities. In these

and similar respects, the power of Congress is held in check by

principles, existing in the nature of things, not imposed by the

Constitution, but presupposed and assumed by it. The power of Congress

over the District is restricted only by those principles that limit

ordinary legislation, and, in some respects, it has even wider scope.

In common with the legislatures of the States, Congress cannot

constitutionally pass ex post facto laws in criminal cases, nor suspend

the writ of habeas corpus, nor pass a bill of attainder, nor abridge the

freedom of speech and of the press, nor invade the right of the people

to be secure in their persons, houses, papers, and effects, nor enact

laws respecting an establishment of religion. These are general

limitations. Congress cannot do these things _any where_. The exact

import, therefore, of the clause "in all cases whatsoever," is, _on all

subjects within the appropriate sphere of legislation_. Some

legislatures are restrained by constitutions, from the exercise of

powers strictly within the proper sphere of legislation. Congressional

power over the District has no such restraint. It traverses the whole

field of legitimate legislation. All the power which any legislature has

within its own jurisdiction, Congress holds over the District of

Columbia.

It has been objected that the clause in question respects merely police

regulations, and that its sole design was to enable Congress to protect

itself against popular tumults. But if the convention that framed the

Constitution aimed to provide for a _single_ case only, why did they

provide for "_all_ cases whatsoever?" Besides, this clause was opposed

in many of the state conventions, because the grant of power was

extended to "_all_ cases whatsoever," instead of being restricted to

police regulations _alone_. In the Virginia Convention, George Mason,

the father of the Virginia Constitution, Patrick Henry, Mr. Grayson, and

others, assailed it on that ground. Mr. Mason said, "This clause gives

an unlimited authority in every possible case within the District. He

would willingly give them exclusive power as far as respected the police

and good government of the place, but he would give them no more." Mr.

Grayson exclaimed against so large a grant of power--said that control

over the _police_ was all-sufficient, and "that the Continental Congress

never had an idea of exclusive legislation in all cases." Patrick Henry

said: "Shall we be told, when about to grant such illimitable authority,

that it will never be exercised? Is it consistent with any principle of

prudence or good policy, to grant _unlimited, unbounded authority_?" Mr.

Madison said in reply: "I did conceive that the clause under

consideration was one of those parts which would speak its own praise. I

cannot comprehend that the power of legislation over a small District,

will involve the dangers which he apprehends. When any power is given,

it's delegation necessarily involves authority to make laws to execute

it. * * * * The powers which are found necessary to be given, are

therefore delegated _generally_, and particular and minute specification

is left to the Legislature. * * * It is not within the limits of human

capacity to delineate on paper all those particular cases and

circumstances, in which legislation by the general legislature, would be

necessary." Governor Randolph said: "Holland has no ten miles square,

but she has the Hague where the deputies of the States assemble. But the

influence which it has given the province of Holland, to have the seat

of government within its territory, subject in some respects to its

control, has been injurious to the other provinces. The wisdom of the

convention is therefore manifest in granting to Congress exclusive

jurisdiction over the place of their session." (_See debates in the

Virginia Convention_, p. 320.) In the forty-third number of the

"Federalist," Mr. Madison says: "The indispensable necessity of

_complete_ authority at the seat of government, carries its own evidence

with it."

Finally, that the grant in question is to be interpreted according to

the obvious import of its _terms_, and not in such a way as to restrict

it to _police_ regulations, is proved by the fact, that the State of

Virginia proposed an amendment to the United States Constitution at the

time of its adoption, providing that this clause "should be so construed

as to give power only over the _police and good government_ of said

District," _which amendment was rejected_. Fourteen other amendments,

proposed at the same time by Virginia, were _adopted_.

The former part, of the clause under consideration, "Congress shall have

power to exercise _exclusive_ legislation," gives sole jurisdiction, and

the latter part, "in all cases whatsoever," defines the _extent_ of it.

Since, then, Congress is the _sole_ legislature within the District, and

since its power is limited only by the checks common to all

legislatures, it follows that what the law-making power is intrinsically

competent to do _any_ where, Congress is competent to do in the District

of Columbia.

STATEMENT OF THE QUESTION AT ISSUE.

Having disposed of preliminaries, we proceed to argue the _real

question_ at issue. Is the law-making power competent to abolish slavery

when not restricted in that particular by constitutional provisions--or,

_Is the abolition of slavery within the appropriate sphere of

legislation?_

In every government, absolute sovereignty exists _somewhere_. In the

United States it exists primarily with the _people_, and _ultimate_

sovereignty _always_ exists with them. In each of the States, the

legislature possesses a _representative_ sovereignty, delegated by the

people through the Constitution--the people thus committing to the

legislature a portion of their sovereignty, and specifying in their

constitutions the amount and the conditions of the grant. That the

_people_ in any state where slavery exists, have the power to abolish

it, none will deny. If the legislature have not the power, it is because

_the people_ have reserved it to themselves. Had they lodged with the

legislature "power to exercise exclusive legislation in all cases

whatsoever," they would have parted with their sovereignty over the

legislation of the State, and so far forth the legislature would have

become _the people_, clothed with all their functions, and as such

competent, _during the continuance of the grant_, to do whatever the

people might have done before the surrender of their power:

consequently, they would have the power to abolish slavery. The

sovereignty of the District of Columbia exists _somewhere_--where is it

lodged? The citizens of the District have no legislature of their own,

no representation in Congress, and no political power whatever. Maryland

and Virginia have surrendered to the United States their "full and

absolute right and entire sovereignty," and the people of the United

States have committed to Congress by the Constitution, the power to

"exercise exclusive legislation in all cases whatsoever over such

District."

Thus, the sovereignty of the District of Columbia, is shown to reside

solely in the Congress of the United States; and since the power of the

people of a state to abolish slavery within their own limits, results

from their entire sovereignty within the state, so the power of Congress

to abolish slavery in the District, results from its entire

_sovereignty_ within the District. If it be objected that Congress can

have no more power over the District, than was held by the legislatures

of Maryland and Virginia, we ask what clause in the constitution

graduates the power of Congress by the standard of a state legislature?

Was the United States constitution worked into its present shape under

the measuring line and square of Virginia and Maryland? and is its power

to be bevelled down till it can run in the grooves of state legislation?

There is a deal of prating about constitutional power over the District,

as though Congress were indebted for it to Maryland and Virginia. The

powers of those states, whether few or many, prodigies or nullities,

have nothing to do with the question. As well thrust in the powers of

the Grand Lama to join issue upon, or twist papal bulls into

constitutional tether, with which to curb congressional action. The

Constitution of the United States gives power to Congress, and takes it

away, and _it alone_. Maryland and Virginia adopted the Constitution

_before_ they ceded to the united States the territory of the District.

By their acts of cession, they abdicated their own sovereignty over the

District, and thus made room for that provided by the United States

constitution, which sovereignty was to commence as soon as a cession of

territory by states, and its acceptance by Congress furnished a sphere

for its exercise.

That the abolition of slavery is within the sphere of legislation, I

argue, _secondly_, from the fact, that _slavery as a legal system, is

the creature of legislation_. The law by _creating_ slavery, not only

affirmed its _existence_ to be within the sphere and under the control

of legislation, but equally, the _conditions_ and _terms_ of its

existence, and the _question_ whether or not it _should_ exist. Of

course legislation would not travel _out_ of its sphere, in abolishing

what is _within_ it, and what was recognised to be within it, by its own

act. Cannot legislatures repeal their own laws? If law can take from a

man his rights, it can give them back again. If it can say, "your body

belongs to your neighbor," it can say, "it belongs to _yourself_, and I

will sustain your right." If it can annul a man's right to himself, held

by express grant from his Maker, and can create for another an

artificial title to him, can it not annul the artificial title, and

leave the original owner to hold himself by his original title?

3. _The abolition of slavery has always been considered within the

appropriate sphere of legislation_. Almost every civilized nation has

abolished slavery by law. The history of legislation since the revival

of letters, is a record crowded with testimony to the universally

admitted competency of the law-making power to abolish slavery. It is so

manifestly an attribute not merely of absolute sovereignty, but even of

ordinary legislation, that the competency of a legislature to exercise

it, may well nigh be reckoned among the legal axioms of the civilized

world. Even the night of the dark ages was not dark enough to make this

invisible.

The Abolition decree of the great council of England was passed in 1102.

The memorable Irish decree, "that all the English slaves in the whole of

Ireland, be immediately emancipated and restored to their former

liberty," was issued in 1171. Slavery in England was abolished by a

general charter of emancipation in 1381. Passing over many instances of

the abolition of slavery by law, both during the middle ages and since

the reformation, we find them multiplying as we approach our own times.

In 1776 slavery was abolished in Prussia by special edict. In St.

Domingo, Cayenne, Guadaloupe and Martinique, in 1794, where more than

600,000 slaves were emancipated by the French government. In Java, 1811;

in Ceylon, 1815; in Buenos Ayres, 1816; in St. Helena, 1819; in

Colombia, 1821; by the Congress of Chili in 1821; in Cape Colony, 1823;

in Malacca, 1825; in the southern provinces of Birmah, in 1826; in

Bolivia, 1826; in Peru, Guatemala, and Monte Video, 1828, in Jamaica,

Barbadoes, Bermudas, Bahamas, the Mauritius, St. Christopher's, Nevis,

the Virgin Islands, Antigua, Montserrat, Dominica, St. Vincents,

Grenada, Berbice, Tobago, St. Lucia, Trinidad, Honduras, Demarara, and

the Cape of Good Hope, on the 1st of August, 1834. But waving details,

suffice it to say, that England, France, Spain, Portugal, Sweden,

Denmark, Austria, Prussia, and Germany, have all and often given their

testimony to the competency of the law to abolish slavery. In our own

country, the Legislature of Pennsylvania passed an act of abolition in

1780, Connecticut, in 1784; Rhode Island, 1784; New-York, 1799;

New-Jersey, in 1804; Vermont, by Constitution, in 1777; Massachusetts,

in 1780; and New Hampshire, in 1784.

When the competency of the law-making power to abolish slavery, has thus

been recognised every where and for ages, when it has been embodied in

the highest precedents, and celebrated in the thousand jubilees of

regenerated liberty, is it forsooth an achievement of modern discovery,

that such a power is a nullity?--that all these acts of abolition are

void, and that the millions disenthralled by them, are, either

themselves or their posterity, still legally in bondage?

4. _Legislative power has abolished slavery in its parts_. The law of

South Carolina prohibits the working of slaves more than fifteen hours

in the twenty-four. [_See__Brevard's Digest_, 253.] In other words, it

takes from the slaveholder his power over nine hours of the slave's time

daily; and if it can take nine hours it may take twenty-four--if

two-fifths, then five-fifths. The laws of Georgia prohibit the working

of slaves on the first day of the week; and if they can do it for the

first, they can for the six following. Laws embodying the same principle

have existed for ages in nearly all governments that have tolerated

slavery.

The law of North Carolina prohibits the "immoderate" correction of

slaves. If it has power to prohibit _immoderate_ correction, it can

prohibit _moderate_ correction--_all_ correction, which would be virtual

emancipation; for, take from the master the power to inflict pain, and

he is master no longer. Cease to ply the slave with the stimulus of

fear, and he is free. Laws similar to this exist in slaveholding

governments generally.

The Constitution of Mississippi gives the General Assembly power to make

laws "to oblige the owners of slaves to _treat them with humanity_." The

Constitution of Missouri has the same clause, and an additional one

making it the DUTY of the legislature to pass such laws as may be

necessary to secure the _humane_ treatment of the slaves. This grant of

power to those legislatures empowers them to decide what _is_ and what

is _not_ "humane treatment." Otherwise it gives no "power"--the clause

is mere waste paper, and flouts in the face of a mocked and befooled

legislature. A clause giving power to require "humane treatment" covers

all the _particulars_ of such treatment--gives power to exact it in all

_respects--requiring_ certain acts, and _prohibiting_ others--maiming,

branding, chaining together, allowing each but a quart of corn a day,[A]

and but "one shirt and one pair of pantaloons" in six

months[B]--separating families, destroying marriages, floggings for

learning the alphabet and reading the Bible--robbing them of their oath,

of jury trial, and of the right to worship God according to

conscience--the legislature has power to specify each of these

acts--declare that it is not "_humane_ treatment," and PROHIBIT it.--The

legislature may also believe that driving men and women into the field,

and forcing them to work without pay as long as they live, is not

"humane treatment," and being constitutionally bound "to _oblige_"

masters to practise "humane treatment"--they have the _power_ to

_prohibit such_ treatment, and are bound to do it.

[Footnote A: Law of North Carolina, Haywood's Manual, 524-5.]

[Footnote B: Law of Louisiana, Martin's Digest, 610.]

The law of Louisiana makes slaves real estate, prohibiting the holder,

if he be also a _land_ holder, to separate them from the soil.[C] If it

has power to prohibit the sale _without_ the soil, it can prohibit the

sale _with_ it; and if it can prohibit the _sale_ as property, it can

prohibit the _holding_ as property. Similar laws exist in the French,

Spanish, and Portuguese colonies.

[Footnote C: Virginia made slaves real estate by a law passed in 1705.

(_Beverly's Hist. of Va._, p. 98.) I do not find the precise time when

this law was repealed, probably when Virginia became the chief slave

breeder for the cotton-growing and sugar-planting country, and made

young men and women "from fifteen to twenty-five" the main staple

production of the State.]

The law of Louisiana requires the master to give his slaves a certain

amount of food and clothing, (_Martin's Digest_, 610.) If it can oblige

the master to give the slave _one_ thing, it can oblige him to give him

another: if food and clothing, then wages, liberty, his own body. Such

laws exist in most slaveholding governments.

By the slave laws of Connecticut, under which slaves are now held, (for

even Connecticut is still a slave State,) slaves might receive and hold

property, and prosecute suits in their own name as plaintiffs: [This

last was also the law of Virginia in 1795. See Tucker's "Dissertation on

Slavery," p. 73.] There were also laws making marriage contracts legal,

in certain contingencies, and punishing infringements of them,

["_Reeve's Law of Baron and Femme_," p. 310-1.] Each of the laws

enumerated above, does, _in principle_, abolish slavery; and all of them

together abolish it _in fact_. True, not as a _whole_, and at a

_stroke_, nor all in one place; but in its _parts_, by piecemeal, at

divers times and places; thus showing that the abolition of slavery is

within the boundary of _legislation_.

5._The competency of the law-making power to abolish slavery has been

recognized by all the slaveholding States, either directly or by

implication_. Some States recognize it in their _Constitutions_, by

giving the legislature power to emancipate such slaves as may "have

rendered the state some distinguished service," and others by express

prohibitory restrictions. The Constitutions of Mississippi, Arkansas,

and other States, restrict the power of the legislature in this respect.

Why this express prohibition, if the law-making power cannot abolish

slavery? A stately farce, indeed, formally to construct a special

clause, and with appropriate rites induct it into the Constitution, for

the express purpose of restricting a nonentity!--to take from the

lawmaking power what it _never had_, and what _cannot_ pertain to it!

The legislatures of those States have no power to abolish slavery,

simply because their Constitutions have expressly _taken away_ that

power. The people of Arkansas, Mississippi, &c., well knew the

competency of the law-making power to abolish slavery, and hence their

zeal to _restrict_ it. The fact that these and other States have

inhibited their legislatures from the exercise of this power, shows that

the abolition of slavery is acknowledged to be a proper subject of

legislation, when Constitutions impose no restrictions.

The Anti-Slavery Examiner, Part 1 of 4 · 第 45 / 59 段