THE
POWER OF CONGRESS
OVER THE
DISTRICT OF COLUMBIA.
ORIGINALLY PUBLISHED IN THE NEW-YORK EVENING POST, UNDER THE SIGNATURE OF "WYTHE."
WITH ADDITIONS BY THE AUTHOR.
FOURTH EDITION.
NEW YORK: PUBLISHED BY THE AMERICAN ANTI-SLAVERY SOCIETY, No. 143 Na.s.sAU STREET. 1838.
This No. 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 const.i.tution is their bill of directions to their own agents--a grant authorizing the exercise of certain powers, and prohibiting that of others. In the Const.i.tution 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_. 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 const.i.tutions 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 Const.i.tution, but presupposed and a.s.sumed 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 const.i.tutionally pa.s.s ex post facto laws in criminal cases, nor suspend the writ of habeas corpus, nor pa.s.s 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 const.i.tutions 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 a.s.serted 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 framers of the Const.i.tution 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 Const.i.tution, 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 circ.u.mstances, 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 a.s.semble. 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" Const.i.tution 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 CONSt.i.tUTIONAL PROVISIONS--or, IS THE ABOLITION OF SLAVERY WITHIN THE APPROPRIATE SPHERE OF LEGISLATION?
1. 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 Const.i.tution--the people thus committing to the legislature a portion of their sovereignty, and specifying in their const.i.tutions the amount of the grant and its conditions. 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 Const.i.tution, 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 of the const.i.tution graduates the power of Congress by the standard of those legislatures?
Was the United States" const.i.tution 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 const.i.tutional power over the District, as though Congress were indebted for it to Maryland and Virginia. The powers of those states, whether 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 const.i.tutional tether, with which to curb congressional action. THE CONSt.i.tUTION OF THE UNITED STATES gives power to Congress, and takes it away, and _it alone_.
Maryland and Virginia adopted the Const.i.tution _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" const.i.tution, 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.
2. FROM THE FACT, THAT SLAVERY, AS A LEGAL SYSTEM, IS THE CREATURE OF LEGISLATION. The law, by _creating_ slavery, not only affirmed its _existence_ to be within the sphere and under the control of legislation, but also, the conditions and terms of its existence, and the _question_ whether or not it should exist. Of course legislation would not travel _out_ of its sphere, in abolishing what is _within_ it, and what had been recognized to be within it, by its own act. Cannot legislatures repeal their own laws? If law can take from a man his rights, it can give them back again. If it can say, "your body belongs to your neighbor," it can say, "it belongs to _yourself_." If it can annul a man"s right to himself, held by express grant from his Maker, and can create for another an _artificial_ t.i.tle to him, can it not annul the artificial t.i.tle, and leave the original owner to hold himself by his original t.i.tle?
3. THE ABOLITION OF SLAVERY HAS ALWAYS BEEN CONSIDERED WITHIN THE APPROPRIATE SPHERE OF LEGISLATION. Almost every civilized nation has abolished slavery by law. The history of legislation since the revival of letters, is a record crowded with testimony to the universally admitted competency of the law-making power to abolish slavery. It is so manifestly an attribute not merely of absolute sovereignty, but even of ordinary legislation, that the competency of a legislature to exercise it, may well nigh be reckoned among the legal axioms of the civilized world. Even the night of the dark ages was not dark enough to make this invisible.
The Abolition decree of the great council of England was pa.s.sed in 1102.
The memorable Irish decree, "that all the English slaves in the whole of Ireland, be immediately emanc.i.p.ated and restored to their former liberty," was issued in 1171. Slavery in England was abolished by a general charter of emanc.i.p.ation in 1381. Pa.s.sing over many instances of the abolition of slavery by law, both during the middle ages and since the reformation, we find them multiplying as we approach our own times.
In 1776 slavery was abolished in Prussia by special edict. In St.
Domingo, Cayenne, Guadaloupe, and Martinique, in 1794, where more than 600,000 slaves were emanc.i.p.ated by the French government. In Java, 1811; in Ceylon, 1815; in Buenos Ayres, 1816; in St. Helena, 1819; in Colombia, 1821; by the Congress of Chili in 1821; in Cape Colony, 1823; in Malacca, 1825; in the southern provinces of Birmah, 1826; in Bolivia, 1826; in Peru, Guatemala, and Monte Video, 1828; in Jamaica, Barbados, the Bermudas, the Bahamas, Anguilla, Mauritius, St. Christopers, Nevis, the Virgin Islands, (British), Antigua, Montserrat, Dominica, St.
Vincents, Grenada, Berbice, Tobago, St. Lucia, Trinidad, Honduras, Demerara, Essequibo and the Cape of Good Hope, on the 1st of August, 1834. But waving details, suffice it to say, that England, France, Spain, Portugal, Denmark, Russia, Austria, Prussia, and Germany, have all and often given their testimony to the competency of the legislative power to abolish slavery. In our own country, the Legislature of Pennsylvania pa.s.sed an act of abolition in 1780, Connecticut in 1784; Rhode Island, 1784; New-York, 1799; New-Jersey, in 1804; Vermont, by Const.i.tution, in 1777; Ma.s.sachusetts, in 1780; and New-Hampshire, in 1784.
When the competency of the law-making power to abolish slavery has thus been recognized every where and for ages, when it has been embodied in the highest precedents, and celebrated in the thousand jubilees of regenerated liberty, is it an achievement of modern discovery, that such a power is a nullity?--that all these acts of abolition are void, and that the millions disenthralled by them, are, either themselves or their posterity, still legally in bondage?
4. LEGISLATIVE POWER HAS ABOLISHED SLAVERS IN ITS PARTS. The law of South Carolina prohibits the working of slaves more than fifteen hours in the twenty-four. In other words, it takes from the slaveholder his power over nine hours of the slave"s time daily; and if it can take nine hours it may take twenty-four. The laws of Georgia prohibit the working of slaves on the first day of the week; and if they can do it for the first, they can for the six following. The law of North Carolina prohibits the "immoderate" correction of slaves. If it has power to prohibit _immoderate_ correction, it can prohibit _moderate_ correction--_all_ correction, which would be virtual emanc.i.p.ation; for, take from the master the power to inflict pain, and he is master no longer. Cease to ply the slave with the stimulus of fear, and he is free.
The Const.i.tution of Mississippi gives the General a.s.sembly power to make laws "to oblige the owners of slaves to _treat them with humanity_." The Const.i.tution of Missouri has the same clause, and an additional one making it the DUTY of the legislature to pa.s.s such laws as may be necessary to secure the _humane_ treatment of the slaves. This grant to those legislatures, empowers them to decide what _is_ and what is _not_ "humane treatment." Otherwise it gives no "power"--the clause is mere waste paper, and flouts in the face of a befooled legislature. A clause giving power to require "humane treatment" covers all the _particulars_ of such treatment--gives power to exact it in _all respects--requiring_ certain acts, and _prohibiting_ others--maiming, branding, chaining together, separating families, floggings for learning the alphabet, for reading the Bible, for worshiping G.o.d according to conscience--the legislature has power to specify each of these acts--declare that it is not "_humane_ treatment," and PROHIBIT it.--The legislature may also believe that driving men and women into the field, and forcing them to work without pay, is not "humane treatment," and being const.i.tutionally bound "to _oblige_" masters to practise "humane treatment"--they have the _power_ to _prohibit such_ treatment, and are bound to do it.
The law of Louisiana makes slaves real estate, prohibiting the holder, if he be also a _land_ holder, to separate them from the soil.[A] If it has power to prohibit the sale _without_ the soil, it can prohibit the sale _with_ it; and if it can prohibit the _sale_ as property, it can prohibit the _holding_ as property. Similar laws exist in the French, Spanish, and Portuguese colonies. The law of Louisiana requires the master to give his slaves a certain amount of food and clothing. If it can oblige the master to give the slave _one_ thing, it can oblige him to give him another: if food and clothing, then wages, liberty, his own body. By the laws of Connecticut, slaves may receive and hold property, and prosecute suits in their own name as plaintiffs: [This last was also the law of Virginia in 1795. See Tucker"s "Dissertation on Slavery," p.
73.] There were also laws making marriage contracts legal, in certain contingencies, and punishing infringements of them, ["_Reeve"s Law of Baron and Femme_," p. 340-1.]
[Footnote A: Virginia made slaves real estate by a law pa.s.sed in 1705.
(_Beverly"s Hist. of Va._, p. 98.) I do not find the precise time when this law was repealed, probably when Virginia became the chief slave breeder for the cotton-growing and sugar-planting country, and made young men and women "from fifteen to twenty-five" the main staple production of the State.]
Each of the laws enumerated above, does, _in principle_, abolish slavery; and all of them together abolish it _in fact_. True, not as a _whole_, and at a _stroke_, nor all in one place; but in its _parts_, by piecemeal, at divers times and places; thus showing that the abolition of slavery is within the boundary of legislation.
In the "Washington (D.C.) City Laws," page 138, is "AN ACT to prevent horses from being cruelly beaten or abused." Similar laws have been pa.s.sed by corporations in many of the slave states, and throughout the civilized world, such acts are punishable either as violations of common law or of legislative enactments. If a legislature can pa.s.s laws "to prevent _horses_ from being cruelly abused," it can pa.s.s laws to prevent _men_ from being cruelly abused, and if it can _prevent_ cruel abuse, it can define _what it is_. It can declare that to make men _work without pay_ is cruel abuse, and can PROHIBIT it.
5. THE COMPETENCY OF THE LAW-MAKING POWER TO ABOLISH SLAVERY, HAS BEEN RECOGNIZED BY ALL THE SLAVEHOLDING STATES, EITHER DIRECTLY OR BY IMPLICATION. Some States recognize it in their _Const.i.tutions_, by giving the legislature power to emanc.i.p.ate such slaves as may "have rendered the state some distinguished service," and others by express prohibitory restrictions. The Const.i.tution of Mississippi, Arkansas, and other States, restrict the power of the legislature in this respect. Why this express prohibition, if the law-making power _cannot_ abolish slavery? A stately farce indeed, with appropriate rites to induct into the Const.i.tution a special clause, for the express purpose of restricting a nonent.i.ty!--to take from the law-making power what it _never had_, and what _cannot_ pertain to it! The legislatures of those States have no power to abolish slavery, simply because their Const.i.tutions have expressly _taken away_ that power. The people of Arkansas, Mississippi, &c. well knew the competency of the law-making power to abolish slavery, and hence their zeal to _restrict_ it.
The slaveholding States have recognised this power in their _laws_.
Virginia pa.s.sed a law in 1786 to prevent the importation of Slaves, of which the following is an extract: "And be it further enacted that every slave imported into this commonwealth contrary to the true intent and meaning of this act, shall upon such importation become _free_." By a law of Virginia, pa.s.sed Dec. 17, 1792, a slave brought into the state and kept _there a year_, was _free_. The Maryland Court of Appeals, Dec., 1813 [case of Stewart vs. Oakes,] decided that a slave owned in Maryland, and sent by his master into Virginia to work at different periods, making one year in the whole, became _free_, being _emanc.i.p.ated_ by the above law. North Carolina and Georgia in their acts of cession, transferring to the United States the territory now const.i.tuting the States of Tennessee, Alabama and Mississippi, made it a condition of the grant, that the provisions of the ordinance of "87 should be secured to the inhabitants, _with the exception of the sixth article which prohibits slavery_; thus conceding, both the competency of law to abolish slavery, and the power of Congress to do it, within its jurisdiction. (These acts show the prevalent belief at that time, in the slaveholding States, that the general government had adopted a line of policy aiming at the exclusion of slavery from the entire territory of the United States, not included within the original States, and that this policy would be pursued unless prevented by specific and formal stipulation.)
Slaveholding States have a.s.serted this power _in their judicial decisions_. In numerous cases their highest courts have decided that if the legal owner of slaves takes them into those States where slavery has been abolished either by law or by the const.i.tution, such removal emanc.i.p.ates them, such law or const.i.tution abolishing their slavery.
This principle is a.s.serted in the decision of the Supreme Court of Louisiana, Lunsford vs. Coquillon, 14 Martin"s La. Reps. 401. Also by the Supreme Court of Virginia, Hunter vs. Fulcher, 1 Leigh"s Reps. 172.
The same doctrine was laid down by Judge Washington, of the U. S. Sup.
Court, Butler vs. Hopper, Washington"s C. C. Reps. 508; also, by the Court of Appeals in Kentucky, Rankin vs. Lydia, 2 Marshall"s Reps. 407; see also, Wilson vs. Isbell, 5 Call"s Reps. 425, Spotts vs. Gillespie, 6 Randolph"s Reps. 566. The State vs. La.s.selle, 1 Blackford"s Reps. 60, Marie Louise vs. Mariot, 8 La. Reps. 475. In this case, which was tried in 1836, the slave had been taken by her master to France and brought back; Judge Matthews, of the Supreme Court of Louisiana, decided that "residence for one moment" under the laws of France emanc.i.p.ated her.