The Anti-Slavery Examiner, Omnibus · Chapter 50Part 50
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II. THE POWER OF CONGRESS TO ABOLISH SLAVERY IN THE DISTRICT HAS BEEN, TILL RECENTLY, UNIVERSALLY CONCEDED.
1. It has been assumed by Congress itself. The following record stands on the journals of the House of Representatives for 1804, p. 225: "On motion made and seconded that the House do come to the following resolution: 'Resolved, That from and after the 4th day of July, 1805, all blacks and people of color that shall be born within the District of Columbia, or whose mothers shall be the property of any person residing within the said District, shall be free, the males at the age of ----, and the females at the age of ----. The main question being taken that the House do agree to said motions as originally proposed, it was negatived by a majority of 46.'" Though the motion was lost, it was on the ground of its alleged inexpediency alone. In the debate which preceded the vote, the power of Congress was conceded. In March, 1816, the House of Representatives passed the following resolution: "Resolved, That a committee be appointed to inquire into the existence of an inhuman and illegal traffic in slaves, carried on in and through the District of Columbia, and to report whether any and what measures are necessary for putting a stop to the same."
On the 9th of January, 1829, the House of Representatives passed the following resolution by a vote of 114 to 66: "Resolved, That the Committee on the District of Columbia, be instructed to inquire into the expediency of providing by law for the gradual abolition of slavery within the District, in such a manner that the interests of no individual shall be injured thereby." Among those who voted in the affirmative were Messrs. Barney of Md., Armstrong of Va., A.H. Shepperd of N.C., Blair of Tenn., Chilton and Lyon of Ky., Johns of Del., and others from slave states.
2. IT HAS BEEN CONCEDED BY COMMITTEES OF CONGRESS, ON THE DISTRICT OF COLUMBIA.--In a report of the committee on the District, Jan. 11, 1837, by their chairman, Mr. Powell of Va., there is the following declaration: "The Congress of the United States, has by the constitution exclusive jurisdiction over the District, and has power upon this subject (slavery,) as upon all other subjects of legislation, to exercise unlimited discretion." Reports of Comms. 2d Sess. 19th Cong. v. iv. No. 43. In December, 1831, the committee on the District, Mr. Doddridge of Va., Chairman, reported, "That until the adjoining states act on the subject, (slavery) it would be (not unconstitutional but) unwise and impolitic, if not unjust, for Congress to interfere." In April, 1836, a special committee on abolition memorials reported the following resolutions by their Chairman, Mr. Pinckney of South Carolina: "Resolved, That Congress possesses no constitutional authority to interfere in any way with the institution of slavery in any of the states of this confederacy."
"Resolved, That Congress ought not to interfere in any way with slavery in the District of Columbia." "Ought not to interfere," carefully avoiding the phraseology of the first resolution, and thus in effect conceding the constitutional power. In a widely circulated "Address to the electors of the Charleston District," Mr. Pinkney is thus denounced by his own constituents: "He has proposed a resolution which is received by the plain common sense of the whole country as a concession that Congress has authority to abolish slavery in the District of Columbia."
3. IT HAS BEEN CONCEDED BY THE CITIZENS OF THE DISTRICT. A petition for the gradual abolition of slavery in the District, signed by nearly eleven hundred of its citizens, was presented to Congress, March 24, 1827. Among the signers to this petition, were Chief Justice Cranch, Judge Van Ness, Judge Morsel, Prof. J.M. Staughton, and a large number of the most influential inhabitants of the District. Mr. Dickson, of New York, asserted on the floor of Congress in 1835, that the signers to this petition owned more than half the property in the District. The accuracy of this statement has never been questioned.
THIS POWER HAS BEEN CONCEDED BY GRAND JURIES OF THE DISTRICT. The grand jury of the county of Alexandria, at the March term, 1802, presented the domestic slaves trade as a grievance, and said, "We consider these grievances demanding legislative redress." Jan. 19, 1829, Mr. Alexander, of Virginia, presented a representation of the grand jury in the city of Washington, remonstrating against "any measure for the abolition of slavery within said District, unless accompanied by measures for the removal of the emancipated from the same;" thus, not only conceding the power to emancipate slaves, but affirming an additional power, that of excluding them when free. Journal H. R. 1828-9, p. 174.
4. THIS POWER HAS BEEN CONCEDED BY STATE LEGISLATURES. In 1828 the Legislature of Pennsylvania instructed their Senators in Congress "to procure, if practicable, the passage of a law to abolish slavery in the District of Columbia." Jan. 28, 1829, the House of Assembly of New York passed a resolution, that their "Senators in Congress be instructed to make every possible exertion to effect the passage of a law for the abolition of Slavery in the District of Columbia." In February, 1837, the Senate of Massachusetts "Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery and the slave trade therein." The House of Representatives passed the following resolution at the same session: "Resolved, That Congress having exclusive legislation in the District of Columbia, possess the right to abolish slavery in said District." November 1, 1837, the Legislature of Vermont, "Resolved that Congress have the full power by the constitution to abolish slavery and the slave trade in the District of Columbia, and in the territories."
In May, 1838, the Legislature of Connecticut passed a resolution asserting the power of Congress to abolish slavery in the District of Columbia.
In January, 1836, the Legislature of South Carolina "Resolved, That we should consider the abolition of Slavery in the District of Columbia as a violation of the rights of the citizens of that District derived from the implied conditions on which that territory was ceded to the General Government." Instead of denying the constitutional power, they virtually admit its existence, by striving to smother it under an implication. In February, 1836, the Legislature of North Carolina "Resolved, That, although by the Constitution all legislative power over the District of Columbia is vested in the Congress of the United States, yet we would deprecate any legislative action on the part of that body towards liberating the slaves of that District, as a breach of faith towards those States by whom the territory was originally ceded. Here is a full concession of the power. February 2, 1836, the Virginia Legislature passed unanimously the following resolution: "Resolved, by the General Assembly of Virginia, that the following article be proposed to the several states of this Union, and to Congress, as an amendment of the Constitution of the United States:" "The powers of Congress shall not be so construed as to authorize the passage of any law for the emancipation of slaves in the District of Columbia, without the consent of the individual proprietors thereof, unless by the sanction of the Legislatures of Virginia and Maryland, and under such conditions as they shall by law prescribe."
Fifty years after the formation of the United States' constitution the states are solemnly called upon by the Virginia Legislature, to amend that instrument by a clause asserting that, in the grant to Congress of "exclusive legislation in all cases whatsoever" over the District, the "case" of slavery is not included!! What could have dictated such a resolution but the conviction that the power to abolish slavery is an irresistible inference from the constitution as it is? The fact that the same legislature, passed afterward a resolution, though by no means unanimously, that Congress does not possess the power, abates not a title of the testimony in the first resolution. March 23d, 1824, "Mr. Brown presented the resolutions of the General Assembly of Ohio, recommending to Congress the consideration of a system for the gradual emancipation of persons of color held in servitude in the United States." On the same day, "Mr. Noble, of Indiana, communicated a resolution from the legislature of that state, respecting the gradual emancipation of slaves within the United States." Journal of the United States' Senate, for 1824-5, p.231.
The Ohio and Indiana resolutions, by taking for granted the general power of Congress over the subject of slavery, do virtually assert its special power within its exclusive jurisdiction.
5. THIS POWER HAS BEEN CONCEDED BY BODIES OF CITIZENS IN THE SLAVE STATES. The petition of eleven hundred citizens of the District, has been already mentioned. "March 5,1830, Mr. Washington presented a memorial of inhabitants of the county of Frederick, in the state of Maryland, praying that provision be made for the gradual abolition of slavery in the District of Columbia." Journal H.R. 1829-30, p. 358.
March 30, 1828. Mr. A.H. Shepperd, of North Carolina, presented a memorial of citizens of that state, "praying Congress to take measures for the entire abolition of slavery in the District of Columbia." Journal H.R. 1829-30, p. 379.
January 14, 1822. Mr. Rhea, of Tennessee, presented a memorial of citizens of that state, praying that "provision may be made, whereby all slaves that may hereafter be born in the District of Columbia, shall be free at a certain period of their lives." Journal H.R. 1821-22, p.142.
December 13, 1824. Mr. Saunders of North Carolina, presented a memorial of the citizens of that state, praying "that measures may be taken for the gradual abolition of slavery in the United States." Journal H.R. 1824-25, p.27.
December 16, 1828. "Mr. Barnard presented the memorial of the American Convention for promoting the abolition of slavery, held in Baltimore, praying that slavery may be abolished in the District of Columbia." Journal U.S. Senate, 1828-29, p.24.
6. DISTINGUISHED STATESMEN AND JURISTS IN THE SLAVEHOLDING STATES, HAVE CONCEDED THIS POWER. The testimony Of Messrs. Doddridge, and Powell, of Virginia, Chief Justice Cranch, and Judges Morsel and Van Ness, of the District, has already been given. In the debate in Congress on the memorial of the Society of Friends, in 1790, Mr. Madison, in speaking of the territories of the United States, explicitly declared, from his own knowledge of the views of the members of the convention that framed the constitution, as well as from the obvious import of its terms, that in the territories, "Congress have certainly the power to regulate the subject of slavery." Congress can have no more power over the territories than that of "exclusive legislation in all cases whatsoever," consequently, according to Mr. Madison, "it has certainly the power to regulate the subject of slavery in the" District. In March, 1816, Mr. Randolph of Virginia, introduced a resolution for putting a stop to the domestic slave trade within the District. December 12, 1827, Mr. Barney, of Maryland, presented a memorial for abolition in the District, and moved that it be printed. Mr. McDuffie, of S.C., objected to the printing, but "expressly admitted the right of Congress to grant to the people of the District any measure which they might deem necessary to free themselves from the deplorable evil."--[See letter of Mr. Claiborne of Miss. to his constituents published in the Washington Globe, May 9, 1836.] The sentiments of Mr. Clay of Kentucky, on the subject are well known. In a speech before the U.S. Senate, in 1836, he declared the power of Congress to abolish slavery in the District "unquestionable." Messrs. Blair, of Tennessee, and Chilton, Lyon, and R.M. Johnson, of Kentucky, A.H. Shepperd, of N.C., Messrs. Armstrong and Smyth of Va., Messrs. Dorsey, Archer, and Barney, of Md., and Johns, of Del., with numerous others from slave states have asserted the power of Congress to abolish slavery in the District. In the speech of Mr. Smyth, of Virginia, on the Missouri question, January 28, 1820, he says on this point: "If the future freedom of the blacks is your real object, and not a mere pretence, why do you begin here? Within the ten miles square, you have undoubted power to exercise exclusive legislation. Produce a bill to emancipate the slaves in the District of Columbia, or, if you prefer it, to emancipate those born hereafter."
To this may be added the testimony of the present Vice President of the United States, Hon. Richard M. Johnson, of Kentucky. In a speech before the U.S. Senate, February 1, 1820, (National Intelligencer, April 29, 1829,) he says: "In the District of Columbia, containing a population of 30,000 souls, and probably as many slaves as the whole territory of Missouri, THE POWER OF PROVIDING FOR THEIR EMANCIPATION RESTS WITH CONGRESS ALONE. Why then, this heart-rending sympathy for the slaves of Missouri, and this cold insensibility, this eternal apathy, towards the slaves in the District of Columbia?"
It is quite unnecessary to add, that the most distinguished northern statesmen of both political parties, have always affirmed the power of Congress to abolish slavery in the District. President Van Buren in his letter of March 6, 1836, to a committee of Gentlemen in North Carolina, says, "I would not, from the light now before me, feel myself safe in pronouncing that Congress does not possess the power of abolishing slavery in the District of Columbia." This declaration of the President is consistent with his avowed sentiments touching the Missouri question, on which he coincided with such men as Daniel D. Thompkins, De Witt Clinton, and others, whose names are a host.[A] It is consistent, also with his recommendation in his last message, in which speaking of the District, he strongly urges upon Congress "a thorough and careful revision of its local government," speaks of the "entire independence" of the people of the District "upon Congress," recommends that a "uniform system of local government" be adopted, and adds, that "although it was selected as the seat of the General Government, the site of its public edifices, the depository of its archives, and the residences of officers intrusted with large amounts of public property, and the management of public business, yet it never has been subjected to, or received, that special and comprehensive legislation which these circumstances peculiarly demanded."
[Footnote A: Mr. Van Buren, when a member of the Senate of New-York, voted for the following preamble and resolutions, which passed unanimously:--Jan. 28th, 1820. "Whereas the inhibiting the further extension of slavery in the United States, is a subject of deep concern to the people of this state: and whereas, we consider slavery as an evil much to be deplored, and that every constitutional barrier should be interposed to prevent its further extension: and that the constitution of the United States clearly gives Congress the right to require new states, not comprised within the original boundary of the United States, to make the prohibition of slavery a condition of their admission into the Union: Therefore,
Resolved, That our Senators be instructed, and our members of Congress be requested, to oppose the admission as a state into the Union, of any territory not comprised as aforesaid, without making the prohibition of slavery therein an indispensible condition of admission."
]
The tenor of Mr. Tallmadge's speech on the right of petition, and of Mr. Webster's on the reception of abolition memorials, may be taken as universal exponents of the sentiments of northern statesmen as to the power of Congress to abolish slavery in the District of Columbia.
An explicit declaration, that an "overwhelming majority" of the present Congress concede the power to abolish slavery in the District has just been made by Robert Barnwell Rhett, a member of Congress from South Carolina, in a letter published in the Charleston Mercury of Dec. 27, 1837. The following is an extract:
"The time has arrived when we must have new guaranties under the constitution, or the Union must be dissolved. Our views of the constitution are not those of the majority. AN OVERWHELMING MAJORITY think that by the constitution, Congress may abolish slavery in the District of Columbia--may abolish the slave trade between the States; that is, it may prohibit their being carried out of the State in which they are--and prohibit it in all the territories, Florida among them. They think, NOT WITHOUT STRONG REASONS, that the power of Congress extends to all of these subjects."
Direct testimony to show that the power of Congress to abolish slavery in the District, has always till recently been universally conceded, is perhaps quite superfluous. We subjoin, however, the following:
The Vice-President of the United States in his speech on the Missouri question, quoted above, after contending that the restriction of slavery in Missouri would be unconstitutional, declares, that the power of Congress over slavery in the District "COULD NOT BE QUESTIONED." In the speech of Mr. Smyth, of Va., also quoted above, he declares the power of Congress to abolish slavery in the District to be "UNDOUBTED."
Mr. Sutherland, of Penn., in a speech in the House of Representatives, on the motion to print Mr. Pinckney's Report, is thus reported in the Washington Globe, of May 9th, '36. "He replied to the remark that the report conceded that Congress had a right to legislate upon the subject in the District of Columbia, and said that SUCH A RIGHT HAD NEVER BEEN, TILL RECENTLY, DENIED."
The American Quarterly Review, published at Philadelphia, with a large circulation and list of contributors in the slave states, holds the following language in the September No. 1833, p. 55: "Under this 'exclusive jurisdiction,' granted by the constitution, Congress has power to abolish slavery and the slave trade in the District of Columbia. It would hardly be necessary to state this as a distinct proposition, had it not been occasionally questioned. The truth of the assertion, however, is too obvious to admit of argument--and we believe has NEVER BEEN DISPUTED BY PERSONS WHO ARE FAMILIAR WITH THE CONSTITUTION."
OBJECTIONS TO THE FOREGOING CONCLUSIONS CONSIDERED.
We now proceed to notice briefly the main arguments that have been employed in Congress and elsewhere against the power of Congress to abolish slavery in the District. One of the most plausible is, that "the conditions on which Maryland and Virginia ceded the District to the United States, would be violated, if Congress should abolish slavery there." The reply to this is, that Congress had no power to accept a cession coupled with conditions restricting that "power of exclusive legislation in all cases whatsoever, over such District," which was given it by the constitution.
To show the futility of the objection, we insert here the acts of cession. The cession of Maryland was made in November, 1788, and is as follows: "An act to cede to Congress a district of ten miles square in this state for the seat of the government of the United States."
"Be it enacted, by the General Assembly of Maryland, that the representatives of this state in the House of Representatives of the Congress of the United States, appointed to assemble at New-York, on the first Wednesday of March next, be, and they are; hereby authorized and required on the behalf of this state, to cede to the Congress of the United States, any district in this state, not exceeding ten miles square, which the Congress may fix upon, and accept for the seat of government of the United States." Laws of Md., v. 2., c. 46.
The cession of Virginia was made on the 3d of December, 1788, in the following words:
"Be it enacted by the General Assembly, That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of the State, and in any part thereof; as Congress may, by law, direct, shall be, and the same is hereby forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right, and exclusive jurisdiction, as well of soil, as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the government of the constitution of the United States."
But were there no provisos to these acts? The Maryland act had none. The Virginia act had this proviso: "Sect. 2. Provided, that nothing herein contained, shall be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States."
This specification touching the soil was merely definitive and explanatory of that clause in the act of cession, "full and absolute right." Instead of restraining the power of Congress on slavery and other subjects, it even gives it freer course; for exceptions to parts of a rule, give double confirmation to those parts not embraced in the exceptions. If it was the design of the proviso to restrict congressional action on the subject of slavery, why is the soil alone specified? As legal instruments are not paragons of economy in words, might not "John Doe," out of his abundance, and without spoiling his style, have afforded an additional word--at least a hint--that slavery was meant, though nothing was said about it?
But again, Maryland and Virginia, in their acts of cession, declare them to be made "in pursuance of" that clause of the constitution which gives to Congress "exclusive legislation in all cases whatsoever" over the ten miles square--thus, instead of restricting that clause, both States confirm it. Now, their acts of cession either accorded with that clause of the constitution, or they conflicted with it. If they conflicted with it, accepting the cessions was a violation of the constitution. The fact that Congress accepted the cessions, proves that in its views their terms did not conflict with its constitutional grant of power. The inquiry whether these acts of cession were consistent or inconsistent with the United Status' constitution, is totally irrelevant to the question at issue. What with the CONSTITUTION? That is the question. Not, what with Virginia, or Maryland, or--equally to the point--John Bull! If Maryland and Virginia had been the authorized interpreters of the constitution for the Union, these acts of cession could hardly have been more magnified than they have been recently by the southern delegation in Congress. A true understanding of the constitution can be had, forsooth, only by holding it up in the light of Maryland and Virginia legislation!
We are told, again, that those States would not have ceded the District if they had supposed the constitution gave Congress power to abolish slavery in it.
This comes with an ill grace from Maryland and Virginia. They knew the constitution. They were parties to it. They had sifted it, clause by clause, in their State conventions. They had weighed its words in the balance--they had tested them as by fire; and, finally, after long pondering, they adopted the constitution. And afterward, self-moved, they ceded the ten miles square, and declared the cession made "in pursuance of" that oft-cited clause, "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such District." And now verily "they would not have ceded if they had supposed!" &c. Cede it they did, and in "full and absolute right both of soil and persons." Congress accepted the cession--state power over the District ceased, and congressional power over it commenced,--and now, the sole question to be settled is, the amount of power over the District lodged in Congress by the constitution. The constitution--THE CONSTITUTION--that is the point. Maryland and Virginia "suppositions" must be potent suppositions to abrogate a clause of the United States' Constitution! That clause either gives Congress power to abolish slavery in the District, or it does not--and that point is to be settled, not by state "suppositions," nor state usages, nor state legislation, but by the terms of the clause themselves.
Southern members of Congress, in the recent discussions, have conceded the power of a contingent abolition in the District, by suspending it upon the consent of the people. Such a doctrine from declaimers like Messrs. Alford, of Georgia, and Walker, of Mississippi, would excite no surprise; but that it should be honored with the endorsement of such men as Mr. Rives and Mr. Calhoun, is quite unaccountable. Are attributes of sovereignty mere creatures of contingency? Is delegated authority mere conditional permission? Is a constitutional power to be exercised by those who hold it, only by popular sufferance? Must it lie helpless at the pool of public sentiment, waiting the gracious troubling of its waters? Is it a lifeless corpse, save only when popular "consent" deigns to puff breath into its nostrils? Besides, if the consent of the people of the District be necessary, the consent of the whole people must be had--not that of a majority, however large. Majorities, to be authoritative, must be legal--and a legal majority without legislative power, or right of representation, or even the electoral franchise, would be truly an anomaly! In the District of Columbia, such a thing as a majority in a legal sense is unknown to law. To talk of the power of a majority, or the will of a majority there, is mere mouthing. A majority? Then it has an authoritative will, and an organ to make it known, and an executive to carry it into effect--Where are they? We repeat it--if the consent of the people of the District be necessary, the consent of every one is necessary--and universal consent will come only with the Greek Kalends and a "perpetual motion." A single individual might thus perpetuate slavery in defiance of the expressed will of a whole people. The most common form of this fallacy is given by Mr. Wise, of Virginia, in his speech, February 16, 1835, in which he denied the power of Congress to abolish slavery in the District, unless the inhabitants owning slaves petitioned for it!! Southern members of Congress at the present session (1837-8) ring changes almost daily upon the same fallacy. What! pray Congress to use a power which it has not? "It is required of a man according to what he hath," saith the Scripture. I commend Mr. Wise to Paul for his ethics. Would that he had got his logic of him! If Congress does not possess the power, why taunt it with its weakness, by asking its exercise? Petitioning, according to Mr. Wise, is, in matters of legislation, omnipotence itself; the very source of all constitutional power; for, asking Congress to do what it cannot do, gives it the power!--to pray the exercise of a power that is not, creates it! A beautiful theory! Let us work it both ways. If to petition for the exercise of a power that is not, creates it--to petition against the exercise of a power that is, annihilates it. As southern gentlemen are partial to summary processes, pray, sirs, try the virtue of your own recipe on "exclusive legislation in all cases whatsoever;" a better subject for experiment and test of the prescription could not be had. But if the petitions of the citizens of the District give Congress the right to abolish slavery, they impose the duty; if they confer constitutional authority, they create constitutional obligation. If Congress may abolish because of an expression of their will, it must abolish at the bidding of that will. If the people of the District are a source of power to Congress, their expressed will has the force of a constitutional provision, and has the same binding power upon the National Legislature. To make Congress dependent on the District for authority, is to make it a subject of its authority, restraining the exercise of its own discretion, and sinking it into a mere organ of the District's will. We proceed to another objection.
"The southern states would not have ratified the constitution, if they had supposed that it gave this power." It is a sufficient answer to this objection, that the northern states would not have ratified it, if they had supposed that it withheld the power. If "suppositions" are to take the place of the constitution--coming from both sides, they neutralize each other. To argue a constitutional question by guessing at the "suppositions" that might have been made by the parties to it would find small favor in a court of law. But even a desperate shift is some easement when sorely pushed. If this question is to be settled by "suppositions," suppositions shall be forthcoming, and that without stint.
First, then, I affirm that the North ratified the constitution, "supposing" that slavery had begun to wax old, and would speedily vanish away, and especially that the abolition of the slave trade, which by the constitution was to be surrendered to Congress after twenty years, would plunge it headlong.
Would the North have adopted the constitution, giving three-fifths of the "slave property" a representation, if it had "supposed" that the slaves would have increased from half a million to two millions and a half by 1838--and that the census of 1840 would give to the slave states thirty representatives of "slave property?"
If they had "supposed" that this representation would have controlled the legislation of the government, and carried against the North every question vital to its interests, would Hamilton, Franklin, Sherman, Gerry, Livingston, Langdon, and Rufus King have been such madmen, as to sign the constitution, and the Northern States such suicides as to ratify it? Every self-preserving instinct would have shrieked at such an infatuate immolation. At the adoption of the United States constitution, slavery was regarded as a fast waning system. This conviction was universal. Washington, Jefferson, Henry, Grayson, Tucker, Madison, Wythe, Pendleton, Lee, Blair, Mason, Page, Parker, Randolph, Iredell, Spaight, Ramsey, Pinkney, Martin, McHenry, Chase, and nearly all the illustrious names south of the Potomac, proclaimed it before the sun. A reason urged in the convention that formed the United States' constitution, why the word slave should not be used in it, was, that when slavery should cease there might remain upon the National Charter no record that it had ever been. (See speech of Mr. Burrill, of R.I., on the Missouri question.)