The profound legal opinion, from which this is an extract, was

elaborated at great length many years since, by a number of the most

distinguished lawyers in the United States, whose signatures are

appended to it. It is specific and to the point. It asserts, 1st, that

Congressional legislation over the District, is "the legislation of the

_States_ and the _people_," (not of _two_ states, and a mere _fraction_

of the people.) 2d, "Over a District placed under _their_ control," i.e.

under the control of the _whole_ of the States, not under the control of

_two twenty-sixths_ of them. 3d, That it was thus put under their

control "_for_ THEIR OWN _benefit_," the benefit of _all_ the States

_equally_; not to secure special benefits to Maryland and Virginia, (or

what it might be _conjectured_ they would regard as benefits.) 4th, It

concludes by asserting that the design of this exclusive control of

Congress over the District was "not for the benefit of the _District_,"

except as that is _connected_ with, and _a means of promoting_ the

_general_ advantage. If this is the case with the _District_, which is

_directly_ concerned, it is pre-eminently so with Maryland and Virginia,

who are but _indirectly_ interested, and would be but remotely affected

by it. The argument of Mr. Madison in the Congress of '89, an extract

from which has been given on a preceding page, lays down the same

principle; that though any matter "_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_." Cong.

Reg. vol. 1. p. 310, 11.

But these are only the initiatory absurdities of this "good faith

_implied_." The thirty-six senators aptly illustrate the principle, that

error not only conflicts with truth, but is generally at issue with

itself. For if it would be a violation of "good faith" to Maryland and

Virginia, for Congress to abolish slavery in the District, it would be

_equally_ a violation for Congress to do it _with the consent_, or even

at the earnest and unanimous petition of the people of the District: yet

for years it has been the southern doctrine, that if the people of the

District demand of Congress relief in this respect, it has power, as

their local legislature, to grant it, and by abolishing slavery there,

carry out the will of the citizens. But now new light has broken in! The

optics of the thirty-six have pierced the millstone with a deeper

insight, and discoveries thicken faster than they can be telegraphed!

Congress has no power, O no, not a modicum, to help the slaveholders of

the District, however loudly they may clamor for it. The southern

doctrine, that Congress is to the District a mere local Legislature to

do its pleasure, is tumbled from the genitive into the vocative! Hard

fate--and that too at the hands of those who begat it! The reasonings of

Messrs. Pinckney, Wise, and Leigh, are now found to be wholly at fault,

and the chanticleer rhetoric of Messrs. Glascock and Garland stalks

featherless and crest-fallen. For, Mr. Clay's resolution sweeps by the

board all those stereotyped common-places, as "Congress a local

Legislature," "consent of the District," "bound to consult the wishes of

the District," &c. &c., which for the last two sessions of Congress have

served to eke out scanty supplies. It declares, that _as slavery existed

in Maryland and Virginia at the time of the cession, and as it still

continues in both those states, it could not be abolished in the

District without a violation of 'that good faith'_, &c.

But let us see where this principle of the _thirty-six_ will lead us. If

"implied faith" to Maryland and Virginia _restrains_ Congress from the

abolition of slavery in the District, it _requires_ Congress to do in

the District what those states have done within their bounds, i.e.,

restrain _others_ from abolishing it. Upon the same principle Congress

is _bound_, by the doctrine of Mr. Clay's resolution, to _prohibit

emancipation_ within the District. There is no _stopping place_ for this

plighted "faith." Congress must not only refrain from laying violent

hands on slavery, _itself_, and see to it that the slaveholders

themselves do not, but it is bound to keep the system up to the Maryland

and Virginia standard of vigor!

Again, if the good faith of Congress to Virginia and Maryland requires

that slavery should exist in the District, while it exists in those

states, it requires that it should exist there _as_ it exists in those

states. If to abolish _every_ form of slavery in the District would

violate good faith, to abolish _the_ form existing in those states, and

to substitute a totally different one, would also violate it. The

Congressional "good faith" is to be kept not only with _slavery_, but

with the _Maryland and Virginia systems_ of slavery. The faith of those

states not being in the preservation of _a_ system, but of _their_

system; otherwise Congress, instead of _sustaining_, would counteract

their policy--principles would be brought into action there conflicting

with their system, and thus the true spirit of the "implied" pledge

would be violated. On this principle, so long as slaves are "chattels

personal" in Virginia and Maryland, Congress could not make them _real

estate_, inseparable from the soil, as in Louisiana; nor could it permit

slaves to read, nor to worship God according to conscience; nor could it

grant them trial by jury, nor legalize marriage; nor require the master

to give sufficient food and clothing; nor prohibit the violent sundering

of families--because such provisions would conflict with the existing

slave laws of Virginia and Maryland, and thus violate the "good faith

implied," &c. So the principle of the resolution binds Congress in all

these particulars: 1st. Not to abolish slavery in the District _until_

Virginia and Maryland abolish. 2d. Not to abolish any _part_ of it that

exists in those states. 3d. Not to abolish any _form_ or _appendage_ of

it still existing in those states. 4th. _To abolish_ when they do. 5th.

To increase or abate its rigor _when, how_, and _as_ the same are

modified by those states. In a word, Congressional action in the

District is to float passively in the wake of legislative action on the

subject in those states.

But here comes a dilemma. Suppose the legislation of those states should

steer different courses--then there would be _two_ wakes! Can Congress

float in both? Yea, verily! Nothing is too hard for it! Its

obsequiousness equals its "power of legislation in _all_ cases

whatsoever." It can float _up_ on the Virginia tide, and ebb down on the

Maryland at the same time. What Maryland does, Congress will do in the

Maryland part. What Virginia does, Congress will do in the Virginia

part. Though Congress might not always be able to run at the bidding of

both _at once_, especially in different directions, yet if it obeyed

orders cheerfully, and "kept in its place," according to its "good faith

implied," impossibilities might not be rigidly exacted. True, we have

the highest sanction for the maxim that no _man_ can serve two

masters--but if "corporations have _no_ souls," analogy would absolve

Congress on that score, or at most give it only _a very small soul_--not

large enough to be at all in the way, as an _exception_ to the universal

rule laid down to the maxim!

In following out the absurdities of this "_implied_ good faith," it will

be seen at once that the doctrine of Mr. Clay's Resolution extends to

_all the subjects_ of _legislation_ existing in Maryland and Virginia,

which exist also within the District. Every system, "institution," law,

and established usage there, is placed beyond Congressional control

equally with slavery, and by the same "implied faith." The abolition of

the lottery system in the District as an _immorality_, was a flagrant

breach of this "good faith" to Maryland and Virginia, as the system

"still continued in those states." So to abolish imprisonment for debt,

and capital punishment, to remodel the bank system, the power of

corporations, the militia law, laws of limitation, &c., in the District,

_unless Virginia and Maryland took the lead_, would violate the "good

faith implied in the cession," &c.

That in the acts of cession no such "good faith" was "implied by

Virginia and Maryland" as is claimed in the Resolution, we argue from

the fact, that in 1781 Virginia ceded to the United States all her

northwest territory, with the special proviso that her citizens

inhabiting that territory should "have their _possessions_ and _titles_

confirmed to them, and be _protected_ in the enjoyment of their _rights_

and liberties." (See Journals of Congress vol. 9, p. 63.) The cession

was made in the form of a deed, and signed by Thomas Jefferson, Samuel

Hardy, Arthur Lee, and James Monroe. Many of these inhabitants _held

slaves_. Three years after the cession, the Virginia delegation in

Congress _proposed_ the passage of an ordinance which should abolish

slavery, in that territory, and declare that it should never thereafter

exist there. All the members of Congress from Virginia and Maryland

voted for this ordinance. Suppose some member of Congress had during the

passage of the ordinance introduced the following resolution: "Resolved,

That when the northwest territory was ceded by Virginia to the United

States, domestic slavery existed in that State, including the ceded

territory, and as it still continues in that State, it could not be

abolished within the territory without a violation of that good faith,

which was implied in the cession and in the acceptance of the

territory." What would have been the indignant response of Grayson,

Griffin, Madison, and the Lees, in the Congress of '87, to such a

resolution, and of Carrington, Chairman of the Committee, who reported

the ratification of the ordinance in the Congress of '89, and of Page

and Parker, who with every other member of the Virginia delegation

supported it?

But to enumerate all the absurdities into which the thirty-six Senators

have plunged themselves, would be to make a quarto inventory. We decline

the task; and in conclusion, merely add that Mr. Clay in presenting this

resolution, and each of the thirty-six Senators who voted for it,

entered on the records of the Senate, and proclaimed to the world, a

most unworthy accusation against the MILLIONS of American citizens who

have during nearly half a century petitioned the national legislature to

abolish slavery in the District of Colombia,--charging them either with

the ignorance or the impiety of praying the nation to violate its

"PLIGHTED FAITH." The resolution virtually indicts at the bar of public

opinion, and brands with odium, all the Manumission Societies, the

_first_ petitioners for the abolition of slavery in the District, and

for a long time the only ones, petitioning from year to year through

evil report and good report, still petitioning, by individual societies

and in their national conventions.

But as if it were not enough to table the charge against such men as

Benjamin Rush, William Rawle, John Sergeant, Robert Vaux, Cadwallader

Colden, and Peter A. Jay,--to whom we may add Rufus King, James

Hillhouse, William Pinkney, Thomas Addis Emmett, Daniel D. Tompkins, De

Witt Clinton, James Kent, and Daniel Webster, besides eleven hundred

citizens of the District itself; headed by their Chief Justice and

judges--even the sovereign States of Pennsylvania, New-York,

Massachusetts, and Vermont, whose legislatures have either memorialized

Congress to abolish slavery in the District, or instructed their

Senators to move such a measure, must be gravely informed by Messrs.

Clay, Norvell, Niles, Smith, Pierce, Benton, Black, Tipton, and other

honorable Senators, either that their perception is so dull, they know

not whereof they affirm, or that their moral sense is so blunted they

can demand without compunction a violation of the nation's faith!

We have spoken already of the concessions unwittingly made in this

resolution to the true doctrine of Congressional power over the

District. For that concession, important as it is, we have small thanks

to render. That such a resolution, passed with such an _intent_, and

pressing at a thousand points on relations and interests vital to the

free states, should be hailed, as it has been, by a portion of the

northern press as a "compromise" originating in deference to northern

interests, and to be received by us as a free-will offering of

disinterested benevolence, demanding our gratitude to the mover,--may

well cover us with shame. We deserve the humiliation and have well

earned the mockery. Let it come!

If, after having been set up at auction in the public sales-room of the

nation, and for thirty years, and by each of a score of "compromises,"

treacherously knocked off to the lowest bidder, and that without money

and without price, the North, plundered and betrayed, _will not_, in

this her accepted time, consider the things that belong to her peace

before they are hidden from her eyes, then let her eat of the fruit of

her own way, and be filled with her own devices! Let the shorn and

blinded giant grind in the prison-house of the Philistines, till taught

the folly of intrusting to Delilahs the secret and the custody of his

strength.

Have the free States bound themselves by an oath never to profit by the

lessons of experience? If lost to _reason_, are they dead to _instinct_

also? Can nothing rouse them to cast about for self preservation? And

shall a life of tame surrenders be terminated by suicidal sacrifice?

A "COMPROMISE!" Bitter irony! Is the plucked and hood-winked North to be

wheedled by the sorcery of another Missouri compromise? A compromise in

which the South gained all, and the North lost all, and lost it for

ever. A compromise which embargoed the free laborer of the North and

West, and clutched at the staff he leaned upon, to turn it into a

bludgeon and fell him with its stroke. A compromise which wrested from

liberty her boundless birthright domain, stretching westward to the

sunset, while it gave to slavery loose reins and a free course, from the

Mississippi to the Pacific.

The resolution, as it finally passed, is here inserted. The original

Resolution, as moved by Mr. Clay, was inserted at the head of this

postscript with the impression that it was the _amended_ form. It will

be seen however, that it underwent no material modification.

"Resolved, That the interference by the citizens of any of the states,

with the view to the abolition of slavery in the District, is

endangering the rights and security of the people of the District; and

that any act or measure of Congress designed to abolish slavery in the

District, would be a violation of the faith implied in the cessions by

the states of Virginia and Maryland, a just cause of alarm to the people

of the slaveholding states, and have a direct and inevitable tendency to

disturb and endanger the Union."

The vote upon the Resolution stood as follows:

_Yeas_.--Messrs. Allen, Bayard, Benton, Black, Buchanan, Brown, Calhoun,

Clay, of Alabama, Clay, of Kentucky, Clayton, Crittenden, Cuthbert,

Fulton, Grundy, Hubbard, King, Lumpkin, Lyon, Nicholas, Niles, Norvell,

Pierce, Preston, Rives, Roane, Robinson, Sevier, Smith, of Connecticut,

Strange, Tallmadge, Tipton, Walker, White, Williams, Wright, Young.

_Nays_.--Messrs. DAVIS, KNIGHT, McKEAN, MORRIS, PRENTISS, RUGGLES,

SMITH, of Indiana, SWIFT, WEBSTER.

THE

ANTI-SLAVERY EXAMINER

No. 5

* * * * *

THE

POWER OF CONGRESS

OVER THE

DISTRICT OF COLUMBIA.

* * * * *

ORIGINALLY PUBLISHED IN THE NEW-YORK EVENING POST, UNDER THE SIGNATURE

OF "WYTHE."

* * * * *

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. 8, 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 not

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 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, "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. When any power is given, its

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. [_Deb. Va. Con._, 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_, is proved by the fact, that 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._

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. Having disposed of preliminaries, we proceed to state and

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."

The Anti-Slavery Examiner, Part 1 of 4 · 第 52 / 59 段