The Anti-Slavery Examiner, Omnibus · Chapter 42Part 42
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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."