grant of power "to provide for the common defence and to promote the
general welfare," I quote an extract from a speech of Mr. Madison, of
Va., in the first Congress under the constitution, May 13, 1789.
Speaking of the abolition of the slave trade, Mr. Madison says: "I
should venture to say it is as much for the interests of Georgia and
South Carolina, as of any state in the union. Every addition they
receive to their number of slaves tends to _weaken_ them, and renders
them less capable of self-defence. In case of hostilities with foreign
nations, they will be the means of _inviting_ attack instead of
repelling invasion. It is a necessary duty of the general government to
protect every part of the empire against danger, as well _internal_ as
external. _Every thing, therefore, which tends to increase this danger,
though it may be a local affair, yet if it involves national expense or
safety, it becomes of concern to every part of the union, and is a
proper subject for the consideration of those charged with the general
administration of the government._" See Cong. Reg. vol. 1, p. 310-11.
WYTHE.
POSTSCRIPT
My apology for adding a _postscript_, to a discussion already perhaps
too protracted, is the fact that the preceding sheets were in the hands
of the printer, and all but the concluding pages had gone through the
press, before the passage of Mr. Calhoun's late resolutions in the
Senate of the United States. A proceeding so extraordinary,--if indeed
the time has not passed when _any_ acts of Congress in derogation of
freedom and in deference to slavery, can be deemed
extraordinary,--should not be suffered to pass in silence at such a
crisis as the present; especially as the passage of one of the
resolutions by a vote of 36 to 8, exhibits a shift of position on the
part of the South, as sudden as it is unaccountable, being nothing less
than the surrender of a fortress which until then they had defended with
the pertinacity of a blind and almost infuriated fatuity. Upon the
discussions during the pendency of the resolutions, and upon the vote,
by which they were carried, I make no comment, save only to record my
exultation in the fact there exhibited, that great emergencies are _true
touchstones_, and that henceforward, until this question is settled,
whoever holds a seat in Congress will find upon, and all around him, a
pressure strong enough to TEST him--a focal blaze that will find its way
through the carefully adjusted cloak of fair pretension, and the
sevenfold brass of two-faced political intrigue, and _no_-faced
_non-committalism_, piercing to the dividing asunder of joints and
marrow. Be it known to every northern man who aspires to a seat in
Congress, that hereafter it is the destiny of congressional action on
this subject, to be a MIGHTY REVELATOR--making secret thoughts public
property, and proclaiming on the house-tops what is whispered in the
ear--smiting off masks, and bursting open sepulchres beautiful
outwardly, and heaving up to the sun their dead men's bones. To such we
say,--_Remember the Missouri Question, and the fate of those who then
sold the North, and their own birthright!_
Passing by the resolutions generally without remark--the attention of
the reader is specially solicited to Mr. Clay's substitute for Mr.
Calhoun's fifth resolution.
"Resolved, That when the District of Columbia was ceded by the states of
Virginia and Maryland to the United States, domestic slavery existed in
both of these states, including the ceded territory, and that, as it
still continues in both of them, it could not be abolished within the
District without a violation of that good faith, which was implied in
the cession and in the acceptance of the territory; nor, unless
compensation were made to the proprietors of slaves, without a manifest
infringement of an amendment to the constitution of the United States;
nor without exciting a degree of just alarm and apprehension in the
states recognising slavery, far transcending in mischievous tendency,
any possible benefit which could be accomplished by the abolition."
By voting for this resolution, the south by a simultaneous movement,
shifted its mode of defence, not so much by taking a position entirely
new, as by attempting to refortify an old one--never much trusted in,
and abandoned mainly long ago, as being unable to hold out against
assault however unskilfully directed. In the debate on this resolution,
though the southern members of Congress did not _professedly_ retreat
from the ground hitherto maintained by them--that Congress has no power
by the constitution to abolish slavery in the District--yet in the main
they silently drew off from it.
The passage of this resolution--with the vote of every southern senator,
forms a new era in the discussion of this question.
We cannot join in the lamentations of those who bewail it. We hail it,
and rejoice in it. It was as we would have had it--offered by a southern
senator, advocated by southern senators, and on the ground that it "was
no compromise"--that it embodied the true southern principle--that "this
resolution stood on as high ground as Mr. Calhoun's."--(Mr.
Preston)--"that Mr. Clay's resolution was as strong as Mr.
Calhoun's"--(Mr. Rives)--that "the resolution he (Mr. Calhoun) now
refused to support, was as strong as his own, and that in supporting it,
there was no abandonment of principle by the south."--(Mr. Walker, of
Mi.)--further, that it was advocated by the southern senators generally
as an expression of their views, and as setting the question of slavery
in the District on its _true_ ground--that finally when the question was
taken, every slaveholding senator, including Mr. Calhoun himself, voted
for the resolution.
By passing this resolution, and with such avowals, the south has
surrendered irrevocably the whole question at issue between them and the
petitioners for abolition in the District. It has, unwittingly but
explicitly, conceded the main question argued in the preceding pages.
The _only_ ground taken against the right of Congress to abolish slavery
in the District is, that slavery existed in Maryland and Virginia when
the cession was made, and "_as it still continues in both of them_, it
could not be abolished without a violation of that good faith which was
implied in the cession," &c. The _sole argument_ is _not_ that exclusive
_sovereignty_ has no power to abolish slavery within its jurisdiction,
_nor_ that the powers of even _ordinary legislation_ cannot do it,--nor
that the clause granting Congress "exclusive legislation in all cases
whatsoever over such District," gives no power to do it; but that the
_unexpressed expectation_ of one of the parties that the other would not
"in _all_ cases" use the power which said party had consented _might be
used "in all cases," prohibits_ the use of it. The only cardinal point
in the discussion, is here not only _yielded_, but formally laid down by
the South as the leading article in their creed on the question of
Congressional jurisdiction over slavery in the District. The _sole
reason_ given why Congress should not abolish, and the sole evidence
that if it did, such abolition would be a violation of "good faith," is
that "_slavery still continues in those states_,"--thus explicitly
admitting, that if slavery did _not_ "still continue" in those States,
Congress _could_ abolish it in the District. The same admission is made
also in the _premises_, which state that slavery existed in those states
_at the time of the cession_, &c. Admitting that if it had _not_ existed
there then, but had grown up in the District under _United States'
laws_, Congress might constitutionally abolish it. Or that if the ceded
parts of those states had been the _only_ parts in which slaves were
held under their laws, Congress might have abolished in such a
contingency also. The cession in that case leaving no slaves in those
states,--no "good faith," would be "implied" in it, nor any "violated,"
by an act of abolition. The principle of the resolution makes this
further admission, that if Maryland and Virginia should at once abolish
their slavery, Congress might at once abolish it in the District. The
principle goes even further than this, and _requires_ Congress in such
case to abolish slavery in the District "by the _good faith implied_ in
the cession and acceptance of the territory." Since according to the
spirit and scope of the resolution, this "implied good faith" of
Maryland and Virginia in making the cession, was that Congress would do
nothing within the District which should go to counteract the policy, or
bring into disrepute the "institutions," or call in question the usages,
or even in any way ruffle the prejudices of those states, or do what
_they_ might think would unfavorably bear upon their interests;
_themselves_ of course being the judges.
But let us dissect another limb of the resolution. What is to be
understood by "that good faith which was IMPLIED?" It is of course an
admission that such a condition was not _expressed_ in the acts of
cession--that in their _terms_ there is nothing restricting the power of
Congress on the subject of slavery in the District--not a _word_
alluding to it, nor one inserted with such an _intent_. This "implied
faith," then, rests on no clause or word in the United States'
Constitution, or in the acts of cession, or in the acts of Congress
accepting the cession, nor does it rest on any declarations of the
legislatures of Maryland and Virginia made at the time, or in that
generation, nor on any _act_ of theirs, nor on any declaration of the
_people_ of those states, nor on the testimony of the Washingtons,
Jeffersons, Madisons, Chaces, Martins, and Jennifers, of those states
and times. The assertion rests _on itself alone!_ Mr. Clay and the other
senators who voted for the resolution, _guess_ that Maryland and
Virginia _supposed_ that Congress would by no means _use_ the power
given them by the constitution, except in such ways as would be well
pleasing in the eyes of those states; especially as one of them was the
"Ancient Dominion!" And now after the lapse of half a century, this
_assumed expectation_ of Maryland and Virginia, the existence of which
is mere matter of conjecture with the 36 senators, is conjured up and
duly installed upon the judgment-seat of final appeal, before whose nod
constitutions are to flee away, and with whom, solemn grants of power
and explicit guaranties are when weighed in the balance, altogether
lighter than vanity!
But let us survey it in another light. Why did Maryland and Virginia
leave so much to be "_implied_?" Why did they not in some way _express_
what lay so near their hearts? Had their vocabulary run so low that a
single word could not be eked out for the occasion? Or were those states
so bashful of a sudden that they dare not speak out and tell what they
wanted? Or did they take it for granted that Congress would always act
in the premises according to their wishes, and that too, without their
_making known_ their wishes? If, as honorable senators tell us, Maryland
and Virginia did verily travail with such abounding _faith_, why brought
they forth no _works_?
It is as true in _legislation_ as in religion, that the only _evidence_
of "faith" is _works_, and that "faith" _without_ works is _dead_, i.e.
has no power. But here, forsooth, a blind implication with nothing
_expressed_, an "implied" _faith_ without works, is _omnipotent_. Mr.
Clay is lawyer enough to know that even a _senatorial hypothesis_ as to
_what must have been the understanding_ of Maryland and Virginia about
congressional exercise of constitutional power, _abrogates no grant_,
and that to plead it in a court of law, would be of small service except
to jostle "their honors'" gravity! He need not be told that the
constitution gives Congress "power to exercise exclusive legislation in
all cases whatsoever over such District." Nor that the legislatures of
Maryland and Virginia constructed their acts of cession with this clause
_before their eyes_, and that both of them declared those acts made "in
_pursuance_" of said clause. Those states were aware that the United
States in their constitution had left nothing to be "_implied_" as to
the power of Congress over the District;--an admonition quite sufficient
one would think to put them on their guard, and induce them to eschew
vague implications and resort to _stipulations_. Full well did they know
also that these were times when, in matters of high import, _nothing_
was left to be "implied." The colonies were then panting from a twenty
years' conflict with the mother country, about bills of rights,
charters, treaties, constitutions, grants, limitations, and _acts of
cession_. The severities of a long and terrible discipline had taught
them to guard at all points _legislative grants_, that their exact
import and limit might be self-evident--leaving no scope for a blind
"faith," that _somehow_ in the lottery of chances there would be no
blanks, but making all sure by the use of explicit terms, and wisely
chosen words, and _just enough_ of them. The Constitution of the United
States with its amendments, those of the individual states, the national
treaties, the public documents of the general and state governments at
that period, show the universal conviction of legislative bodies, that
when great public interests were at stake, nothing should be left to be
"implied."
Further: suppose Maryland and Virginia had expressed their "implied
faith" in _words_, and embodied it in their acts of cession as a
proviso, declaring that Congress should not "exercise exclusive
legislation in _all_ cases whatsoever over the District," but that the
"case" of _slavery_ should be an exception: who does not know that
Congress, if it had accepted the cession on those terms, would have
violated the Constitution; and who that has ever studied the free mood
of those times in its bearings on slavery--proofs of which are given in
scores on the preceding pages--can for an instant believe that the
people of the United States would have altered their Constitution for
the purpose of providing for slavery an inviolable sanctuary; that when
driven in from its outposts, and everywhere retreating discomfited
before the march of freedom, it might be received into everlasting
habitations on the common homestead and hearth-stone of this free
republic? Besides, who can believe that Virginia made such a condition,
or cherished such a purpose, when at that very moment, Washington,
Jefferson, Wythe, Patrick Henry St. George Tucker, and almost all her
illustrious men, were advocating the abolition of slavery by law. When
Washington had said, two years before, Maryland and Virginia "must have
laws for the gradual abolition of slavery and at a period _not remote_;"
and when Jefferson in his letter to Price, three years before the
cession, had said, speaking of Virginia, "This is the next state to
which we may turn our eyes for the interesting spectacle of justice in
conflict with avarice and oppression--a conflict in which THE SACRED
SIDE IS GAINING DAILY RECRUITS;" when voluntary emancipations on the
soil were then progressing at the rate of between one and two thousand
annually, (See Judge Tucker's "Dissertation on Slavery," p. 73;) when
the public sentiment of Virginia had undergone, and was undergoing so
mighty a revolution that the idea of the continuance of slavery as a
permanent system could not be _tolerated_, though she then contained
about half the slaves in the Union. Was this the time to stipulate for
the _perpetuity_ of slavery under the exclusive legislation of Congress?
and that too at the _same_ session of Congress when _every one_ of her
delegation voted for the abolition of slavery in the North West
Territory; a territory which she had herself ceded to Congress, and
along with it had surrendered her jurisdiction over many of her
citizens, inhabitants of that territory, who held slaves there--and
whose slaves were emancipated by that act of Congress, in which all her
delegation with one accord participated?
Now in view of the universal belief then prevalent, that slavery in this
country was doomed to short life, and especially that in Maryland and
Virginia it would be _speedily_ abolished--are we to be told that these
states _designed_ to bind Congress _never_ to terminate it? Are we to
adopt the monstrous conclusion that this was the _intent_ of the Ancient
Dominion--thus to _bind_ the United States by an "implied faith," and
that when the United States _accepted_ the cession, she did solemnly
thus plight her troth, and that Virginia did then so _understand_ it?
Verily one would think that honorable senators supposed themselves
deputed to do our _thinking_ as well as our legislation, or rather, that
they themselves were absolved from such drudgery by virtue of their
office!
Another absurdity of this dogma about "implied faith" is, that where
there was no power to exact an _express_ pledge, there was none to
demand an _implied_ one, and where there was no power to _give_ the one,
there was none to give the _other_. We have shown already that Congress
could not have accepted the cession with such a condition. To have
signed away a part of its constitutional grant of power would have been
a _breach_ of the Constitution. Further, the Congress which accepted the
cession was competent to pass a resolution pledging itself not to _use
all_ the power over the District committed to it by the Constitution.
But here its power ended. Its resolution would only bind _itself_. Could
it bind the _next_ Congress by its authority? Could the members of one
Congress say to the members of another, because we do not choose to
exercise all the authority vested in us by the Constitution, therefore
you _shall_ not? This would have been a prohibition to do what the
Constitution gives power to do. Each successive Congress would still
have gone to the Constitution for its power, brushing away in its course
the cobwebs stretched across its path by the officiousness of an
impertinent predecessor. Again, the legislatures of Virginia and
Maryland, had no power to bind Congress, either by an express or an
implied pledge, never to abolish slavery in the District. Those
legislatures had no power to bind _themselves_ never to abolish slavery
within their own territories--the ceded parts included. Where then would
they get power to bind _another_ not to do what they had no power to
bind themselves not to do? If a legislature could not in this respect
control the successive legislatures of its own State, could it control
the successive Congresses of the United States?
But perhaps we shall be told, that the "implied faith" in the acts of
cession of Maryland and Virginia was _not_ that Congress should _never_
abolish slavery in the District, but that it should not do it until
_they_ had done it within their bounds! Verily this "faith" comes little
short of the faith of miracles! "A good rule that works both ways."
First, Maryland and Virginia have "good faith" that Congress will _not_
abolish until _they_ do; and then just as "good faith" that Congress
_will_ abolish _when_ they do! Excellently accommodated! Did those
States suppose that Congress would legislate over the national domain,
the common jurisdiction of _all_, for Maryland and Virginia alone? And
who, did they suppose, would be judges in the matter?--themselves
merely? or the whole Union?
This "good faith implied in the cession" is no longer of doubtful
interpretation. The principle at the bottom of it, when fairly stated,
is this:--That the Government of the United States are bound in "good
faith" to do in the District of Columbia, without demurring, just what
and when, Maryland and Virginia do in their own States. In short, that
the general government is eased of all the burdens of legislation within
its exclusive jurisdiction, save that of hiring a scrivener to copy off
the acts of the Maryland and Virginia legislatures as fast as they are
passed, and engross them, under the title of "Laws of the United States,
for the District of Columbia!" A slight additional expense would also be
incurred in keeping up an express between the capitols of those States
and Washington city, bringing Congress from time to time its
"_instructions_" from head quarters--instructions not to be disregarded
without a violation of that, "good faith implied in the cession," &c.
This sets in strong light the advantages of "our glorious Union," if the
doctrine of Mr. Clay and the thirty-six Senators be orthodox. The people
of the United States have been permitted to set up at their own expense,
and on their own territory, two great _sounding boards_ called "Senate
Chamber" and "Representatives' Hall," for the purpose of sending abroad
"by authority" _national echoes_ of _state_ legislation!--permitted also
to keep in their pay a corps of pliant _national_ musicians, with
peremptory instructions to sound on any line of the staff according as
Virginia and Maryland may give the _sovereign_ key note!
Though this may have the seeming of mere raillery, yet an analysis of
the resolution and of the discussions upon it, will convince every fair
mind that it is but the legitimate carrying out of the _principle_
pervading both. They proceed virtually upon the hypothesis that the will
and pleasure of Virginia and Maryland are _paramount_ to those of the
_Union_. If the main design of setting apart a federal district had been
originally the accommodation of Maryland, Virginia, and the south, with
the United States as an _agent_ to consummate the object, there could
hardly have been higher assumption or louder vaunting. The sole object
of _having_ such a District was in effect totally perverted in the
resolution of Mr. Clay, and in the discussions of the entire southern
delegation, upon its passage. Instead of taking the ground, that the
benefit of the whole Union was the sole _object_ of a federal district,
that it was designed to guard and promote the interests of _all_ the
states, and that it was to be legislated over _for this end_--the
resolution proceeds upon an hypothesis _totally the reverse_. It takes a
single point of _state_ policy, and exalts it above NATIONAL interests,
utterly overshadowing them; abrogating national _rights_; making void a
clause of the Constitution; humbling the general government into a
subject--crouching for favors to a superior, and that too _on its own
exclusive jurisdiction_. All the attributes of sovereignty vested in
Congress by the Constitution it impales upon the point of an alleged
_implication_. And this is Mr. Clay's peace-offering, to appease the
lust of power and the ravenings of state encroachment! A "_compromise_,"
forsooth! that sinks the general government on _its own territory_ into
a mere colony, with Virginia and Maryland for its "mother country!" It
is refreshing to turn from these shallow, distorted constructions and
servile cringings, to the high bearing of other southern men in other
times; men, who in their character of legislators and lawyers, disdained
to accommodate their interpretations of constitutions and charters to
geographical lines, or to bend them to the purposes of a political
canvass. In the celebrated case of Cohens vs. the State of Virginia,
Hon. William Pinkney, late of Baltimore, and Hon. Walter Jones, of
Washington city, with other eminent constitutional lawyers, prepared an
elaborate written opinion, from which the following is an extract: "Nor
is there any danger to be apprehended from allowing to Congressional
legislation with regard to the District of Columbia, its FULLEST EFFECT.
Congress is responsible to the States, and to the people for that
legislation. It is in truth the legislation of the states over a
district placed under their control for _their own benefit_, not for
that of the District, except as the prosperity of the District is
involved, and necessary to the _general advantage_."--[Life of Pinkney,
p. 612.]