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."