Chapter XXV: Front Matter (25)

In conclusion, I argue the power of Congress to abolish slavery in the District, froth Art. 1, sec. 8, clause 1, of the constitution: "Congress shall have power to provide for the common defence and the general welfare of the United States." Has the government of the United States no power under this grant, to legislate within its own exclusive jurisdiction on subjects that vitally affect its interests? Suppose the slaves in the District should rise upon their masters, and the United States' government, in quelling the insurrection, should kill any number of them. Could their masters claim compensation of the government? Manifestly not; even though no proof existed that the particular slaves killed were insurgents. This was precisely the point at issue between those masters, whose slaves were killed by the State troops at the time of the Southampton insurrection, and the Virginia Legislature; no evidence was brought to show that the slaves killed by the troops were insurgents; yet the Virginia Legislature decided that their masters were _not entitled to compensation_. They proceeded on the sound principle, that a government may in self protection destroy the claim of its subjects even to that which has been recognised as property by its own acts. If in providing for the common defence the United States government, in the case supposed, would have power to destroy slaves both as _property and persons_, it surely might stop half-way, destroy them as _property_ while it legalized their existence as _persons_, and thus provided for the common defence by giving them a personal and powerful interest in the government, and securing their strength for its defence.

Like other Legislatures, Congress has power to abate nuisances--to remove or tear down unsafe buildings--to destroy infected cargoes--to lay injunctions upon manufactories injurious to the public health--and thus to "provide for the common defence and general welfare" by destroying individual property, when it puts in jeopardy the public weal.

Granting, for argument's sake, that slaves are "property" in the District of Columbia--if Congress has a right to annihilate property in the District when the public safety requires it, it may surely annihilate its existence _as_ property when public safety requires it, especially if it transform into a _protection_ and _defence_ that which as _property_ periled the public interests. In the District of Columbia there are, besides the United States' Capitol, the President's house, the national offices, &c. of the Departments of State, Treasury, War, and Navy, the General Post-office, and Patent Office. It is also the residence of the President, all the highest officers of the government, both houses of Congress, and all the foreign ambassadors. In this same District there are also _seven thousand slaves_. Jefferson, in his Notes on Va. p. 241, says of slavery, that "the State permitting one half of its citizens to trample on the rights of the other, _transforms them into enemies_;" and Richard Henry Lee, in the Va. House of Burgesses in 1758, declared that to those who held them, "_slaves must be natural enemies._" Is Congress so _impotent_ that it _cannot_ exercise that right pronounced both by municipal and national law, the most sacred and universal--the right of self-preservation and defence? Is it shut up to the _necessity_ of keeping seven thousand "enemies" in the heart of the nation's citadel? Does the iron fiat of the constitution doom it to such imbecility that it _cannot_ arrest the process that _made_ them "enemies," and still goads to deadlier hate by fiery trials, and day by day adds others to their number? Is _this_ providing for the common defence and general welfare? If to rob men of rights excites their hate, freely to restore them and make amends, will win their love.

By emancipating the slaves in the District, the government of the United States would disband an army of "enemies," and enlist "for the common defence and general welfare," a body guard of _friends_ seven thousand strong. In the last war, a handful of British soldiers sacked Washington city, burned the capitol, the President's house, and the national offices and archives; and no marvel, for thousands of the inhabitants of the District had been "TRANSFORMED INTO ENEMIES." Would _they_ beat back invasion? If the national government had exercised its constitutional "power to provide for the common defence and to promote the general welfare," by turning those "enemies" into friends, then, instead of a hostile ambush lurking in every thicket inviting assault, and secret foes in every house paralyzing defence, an army of allies would have rallied in the hour of her calamity, and shouted defiance from their munitions of rocks; whilst the banner of the republic, then trampled in dust, would have floated securely over FREEMEN exulting amidst bulwarks of strength.

To show that Congress can abolish slavery in the District, under the 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.]

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.

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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.

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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."

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 that 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,