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.