But we turn from these considerations--though the times on which we have fallen, and those toward which we are borne with headlong haste, call for their discussion as with the voices of departing life--and proceed to topics relevant to the argument before us.
The seventh article of the amendments to the const.i.tution is alleged to withhold from Congress the power to abolish slavery in the District. "No person shall be deprived of life, liberty, or property, without due process of law." All the slaves in the District have been "deprived of liberty" by legislative acts. Now, these legislative acts "depriving"
them "of liberty," were either "due process of law," or they were _not_.
If they _were_, then a legislative act, taking from the master that "property" which is the identical "liberty" previously taken from the slave, would be "due process of law" _also_, and of course a _const.i.tutional_ act; but if the legislative acts "depriving" them of "liberty" were _not_ "due process of law," then the slaves were deprived of liberty _unconst.i.tutionally_, and these acts are _void_. In that case the _const.i.tution emanc.i.p.ates them_.
If the objector reply, by saying that the import of the phrase "due process of law," is _judicial_ process solely, it is granted, and that fact is our rejoinder; for no slave in the District _has_ been deprived of his liberty by "a judicial process," or, in other words, by "due process of law;" consequently, upon the objector"s own admission, every slave in the District has been deprived of liberty _unconst.i.tutionally_, and is therefore _free by the const.i.tution_. This is a.s.serted only of the slaves under the "exclusive legislation" of Congress.
The last clause of the article under consideration is quoted for the same purpose: "Nor shall private property he taken for public use without just compensation." Each of the state const.i.tutions has a clause of similar purport. The abolition of slavery in the District by Congress, would not, as we shall presently show; violate this clause either directly or by implication. Granting for argument"s sake, that slaves are "private property," and that to emanc.i.p.ate them, would be to "take private property" for "public use," the objector admits the power of Congress to do _this_, provided it will do something _else_, that is, _pay_ for them. Thus, instead of denying the _power_, the objector not only admits, but _affirms_ it, as the ground of the inference that compensation must accompany it. So far from disproving the existence of _one_ power, he a.s.serts the existence of _two_--one, the power to take the slaves from their masters, the other, the power to take the property of the United States to pay for them.
If Congress cannot const.i.tutionally impair the right of private property, or take it without compensation, it cannot const.i.tutionally, _legalize_ the perpetration of such acts, by _others_, nor _protect_ those who commit them. Does the power to rob a man of his earnings, rob the earner of his _right_ to them? Who has a better right to the _product_ than the producer?--to the _interest_, than the owner of the _princ.i.p.al_?--to the hands and arms, than he from whose shoulders they swing?--to the body and soul, than he whose they are? Congress not only impairs but annihilates the right of private property, while it withholds from the slaves of the District their t.i.tle to _themselves_.
What! Congress powerless to protect a man"s right to _himself_, when it can make inviolable the right to a _dog_! But, waiving this, I deny that the abolition of slavery in the District would violate this clause. What does the clause prohibit? The "taking" of "private property" for "public use." Suppose Congress should emanc.i.p.ate the slaves in the District, what would it "_take_?" Nothing. What would it _hold_? Nothing. What would it put to "public use?" Nothing. Instead of _taking_ "private property," Congress, by abolishing slavery, would say "_private property_ shall not be taken; and those who have been robbed of it already, shall be kept out of it no longer; and every man"s right to his own body shall be protected." True, Congress may not arbitrarily take property, _as_ property, from one man and give it to another--and in the abolition of slavery no such thing is done. A legislative act changes the _condition_ of the slave--makes him his own _proprietor_, instead of the property of another. It determines a question of _original right_ between two cla.s.ses of persons--doing an act of justice to one, and restraining the other from acts of injustice; or, in other words, preventing one from robbing the other, by granting to the injured party the protection of just and equitable laws.
Congress, by an act of abolition, would change the condition of seven thousand "persons" in the District, but would "take" nothing. To construe this provision so as to enable the citizens of the District to hold as property, and in perpetuity, whatever they please, or to hold it as property in all circ.u.mstances--all necessity, public welfare, and the will and power of the government to the contrary notwithstanding--is a total perversion of its whole _intent_. The _design_ of the provision, was to throw up a barrier against Governmental aggrandizement. The right to "take property" for _State uses_ is one thing;--the right so to adjust the _tenures_ by which property is held, that _each may have his own secured to him_, is another thing, and clearly within the scope of legislation. Besides, if Congress were to "take" the slaves in the District, it would be _adopting_, not abolishing slavery--becoming a slaveholder itself, instead of requiring others to be such no longer.
The clause in question, prohibits the "taking" of individual property for public use, to be employed or disposed of _as_ property for governmental purposes. Congress, by abolishing slavery in the District, would do no such thing. It would merely change the _condition_ of that which has been recognized as a qualified property by congressional acts, though previously declared "persons" by the const.i.tution. More than this is done continually by Congress and every other Legislature. Property the most absolute and unqualified, is annihilated by legislative acts.
The embargo and non-intercourse act, levelled at a stroke a forest of shipping, and sunk millions of capital. To say nothing of the power of Congress to take hundreds of millions from the people by direct taxation, who doubts its power to abolish at once the whole tariff system, change the seat of Government, arrest the progress of national works, prohibit any branch of commerce with the Indian tribes or with foreign nations, change the locality of forts, a.r.s.enals, magazines and dock yards; abolish the Post Office system, and the privilege of patents and copyrights? By such acts Congress might, in the exercise of its acknowledged powers, annihilate property to an incalculable amount, and that without becoming liable to claims for compensation.
Finally, this clause prohibits the taking for public use of "_property_." The const.i.tution of the United States does not recognize slaves as "PROPERTY" any where, and it does not recognize them in _any sense_ in the District of Columbia. All allusions to them in the const.i.tution recognize them as "persons." Every reference to them points _solely_ to the element of _personality_; and thus, by the strongest implication, declares that the const.i.tution _knows_ them only as "persons," and _will_ not recognize them in any other light. If they escape into free States, the const.i.tution authorizes their being taken back. But how? Not as the property of an "owner," but as "persons;" and the peculiarity of the expression is a marked recognition of their _personality_--a refusal to recognize them as chattels--"persons _held_ to service." Are _oxen "held_ to service?" That can be affirmed only of _persons_. Again, slaves give political power as "persons." The const.i.tution, in settling the principle of representation, requires their enumeration in the census. How? As property? Then why not include race horses and game c.o.c.ks? Slaves, like other inhabitants, are enumerated as "persons." So by the const.i.tution, the government was pledged to non-interference with "the migration or importation of such _persons_" as the States might think proper to admit until 1808, and authorized the laying of a tax on each "person" so admitted. Further, slaves are recognized as _persons_ by the exaction of their _allegiance_ to the government. For offences against the government slaves are tried as _persons_; as persons they are ent.i.tled to counsel for their defence, to the rules of evidence, and to "due process of law," and as _persons_ they are punished. True, they are loaded with cruel disabilities in courts of law, such as greatly obstruct and often inevitably defeat the ends of justice, yet they are still recognized as _persons_. Even in the legislation of Congress, and in the diplomacy of the general government, notwithstanding the frequent and wide departures from the integrity of the const.i.tution on this subject, slaves are not recognized as _property_ without qualification. Congress has always refused to grant compensation for slaves killed or taken by the enemy, even when these slaves had been impressed into the United States" service. In half a score of cases since the last war, Congress has rejected such applications for compensation. Besides, both in Congressional acts, and in our national diplomacy, slaves and property are not used as convertible terms. When mentioned in treaties and state papers it is in such a way as to distinguish them from mere property, and generally by a recognition of their _personality_. In the invariable recognition of slaves as _persons_, the United States" const.i.tution caught the mantle of the glorious Declaration, and most worthily wears it. It recognizes all human beings as "men," "persons," and thus as "equals." In the original draft of the Declaration, as it came from the hand of Jefferson, it is alleged that Great Britain had "waged a cruel war against _human_ nature itself, violating its most sacred rights of life and liberty in the persons of a distant people, carrying them into slavery, * * determined to keep up a market where MEN should be bought and sold,"--thus disdaining to make the charter of freedom a warrant for the arrest of _men_, that they might be shorn both of liberty and humanity.
The celebrated Roger Sherman, one of the committee of five appointed to draft the Declaration of Independence, and a member of the convention that formed the United States" const.i.tution, said, in the first Congress after its adoption: "The const.i.tution _does not consider these persons, (slaves,) as a species of property_."--[Lloyd"s Cong. Reg. v. 1, p.
313.] That the United States" Const.i.tution does not make slaves "property," is shown in the fact, that no person, either as a citizen of the United States, or by having his domicile within the United States"
government, can hold slaves. He can hold them only by deriving his power from _state_ laws, or from the laws of Congress, if he hold slaves within the District. But no person resident within the United States"
jurisdiction, and _not_ within the District, nor within a state whose laws support slavery, nor "held to service" under the laws of such a state or district, having escaped therefrom, _can be held as a slave_.
Men can hold _property_ under the United States" government though residing beyond the bounds of any state, district, or territory. An inhabitant of the Iowa Territory can hold property there under the laws of the United States, but he cannot hold _slaves_ there under the United States" laws, nor by virtue of the United States" Const.i.tution, nor upon the ground of his United States" citizenship, nor by having his domicile within the United States" jurisdiction. The const.i.tution no where recognizes the right to "slave property," _but merely the fact that the states have jurisdiction each in its own limits, and that there are certain "persons" within their jurisdictions "held to service" by their own laws_.
Finally, in the clause under consideration "private property" is not to be taken "without just compensation." "JUST!" If justice is to be appealed to in determining the _amount_ of compensation, let her determine the _grounds_ also. If it be her province to say _how much_ compensation is "just," it is hers to say whether _any_ is "just,"--whether the slave is "just" property _at all_, rather than a "_person_". Then, if justice adjudges the slave to be "private property," it adjudges him to be _his own_ property, since the right to one"s self is the first right--the source of all others--the original stock by which they are acc.u.mulated--the princ.i.p.al, of which they are the interest. And since the slave"s "private property" has been "taken,"
and since "compensation" is impossible--there being no _equivalent_ for one"s self--the least that can be done is to restore to him his original private property.
Having shown that in abolishing slavery, "property" would not be "taken for public use," it may be added that, in those states where slavery has been abolished by law, no claim for compensation has been allowed.
Indeed the manifest absurdity of demanding it seems to have quite forestalled the _setting up_ of such a claim.
The abolition of slavery in the District instead of being a legislative anomaly, would proceed upon the principles of every day legislation. It has been shown already, that the United States" Const.i.tution does not recognize slaves as "property." Yet ordinary legislation is full of precedents, showing that even _absolute_ property is in many respects wholly subject to legislation. The repeal of the law of entailments--all those acts that control the alienation of property, its disposal by will, its pa.s.sing to heirs by descent, with the question, who shall be heirs, and what shall be the rule of distribution among them, or whether property shall be transmitted at all by descent, rather than escheat to the estate--these, with statutes of limitation, and various other cla.s.ses of legislative acts, serve to ill.u.s.trate the acknowledged scope of the law-making power, even where property _is in every sense absolute_. Persons whose property is thus affected by public laws, receive from the government no compensation for their losses; unless the state has been put in possession of the property taken from them.
The preamble of the United States" Const.i.tution declares it to be a fundamental object of the organization of the government "to ESTABLISH JUSTICE." Has Congress _no power_ to do that for which it was made the depository of power? CANNOT the United States" Government fulfil the purpose for which it was brought into being?
To abolish slavery, is to take from no rightful owner his property; but to "establish justice" between two parties. To emanc.i.p.ate the slave, is to "establish justice" between him and his master--to throw around the person, character, conscience; liberty, and domestic relations of the one, _the same law_ that secures and blesses the other. In other words, to prevent by legal restraints one cla.s.s of men from seizing upon another cla.s.s, and robbing them at pleasure of their earnings, their time, their liberty, their kindred, and the very use and ownership of their own persons. Finally, to abolish slavery is to proclaim and _enact_ that innocence and helplessness--now _free plunder_--are ent.i.tled to _legal protection_; and that power, avarice, and l.u.s.t, shall no longer revel upon their spoils under the license, and by the ministration of _law_! Congress, by possessing "exclusive legislation in all cases whatsoever," has a _general protective power for_ ALL the inhabitants of the District. If it has no power to protect _one_ man in the District it has none to protect another--none to protect _any_--and if it _can_ protect one man and is _bound_ to do it, it _can_ protect _every_ man--and is _bound_ to do it. All admit the power of Congress to protect the masters in the District against their slaves. What part of the const.i.tution gives the power? The clause so often quoted,--"power of legislation in all cases whatsoever," equally in the "_case_" of defending blacks against whites, as in that of defending whites against blacks. The power is also conferred by Art. 1, Sec. 8, clause 15--"Congress shall have power to suppress insurrections"--a power to protect, as well blacks against whites, as whites against blacks. If the const.i.tution gives power to protect _one_ cla.s.s against the other, it gives power to protect _either_ against the other. Suppose the blacks in the District should seize the whites, drive them into the fields and kitchens, force them to work without pay, flog them, imprison them, and sell them at their pleasure, where would Congress find power to restrain such acts? Answer; a _general_ power in the clause so often cited, and an _express_ one in that cited above--"Congress shall have power to suppress insurrections." So much for a supposed case. Here follows a real one. The whites in the District are _perpetrating these identical acts_ upon seven thousand blacks daily. That Congress has power to restrain these acts in _one_ case, all a.s.sert, and in so doing they a.s.sert the power "in _all_ cases whatsoever." For the grant of power to suppress insurrections, is an _unconditional_ grant, not hampered by provisos as to the color, shape, size, s.e.x, language, creed, or condition of the insurgents. Congress derives its power to suppress this _actual_ insurrection, from the same source whence it derived its power to suppress the _same_ acts in the case supposed. If one case is an insurrection, the other is. The _acts_ in both are the same; the _actors_ only are different. In the one case, ignorant and degraded--goaded by the memory of the past, stung by the present, and driven to desperation by the fearful looking for of wrongs for ever to come. In the other, enlightened into the nature of _rights_, the principles of justice, and the dictates of the law of love, unprovoked by wrongs, with cool deliberation, and by system, they perpetrate these acts upon those to whom they owe unnumbered obligations for _whole lives_ of unrequited service. On which side may palliation be pleaded, and which party may most reasonably claim an abatement of the rigors of law? If Congress has power to suppress such acts _at all_, it has power to suppress them _in_ all.
It has been shown already that _allegiance_ is exacted of the slave. Is the government of the United States unable to grant _protection_ where it exacts _allegiance_? It is an axiom of the civilized world, and a maxim even with savages, that allegiance and protection are reciprocal and correlative. Are principles powerless with us which exact homage of barbarians? _Protection is the_ CONSt.i.tUTIONAL RIGHT _of every human.
being under the exclusive legislation of Congress who has not forfeited it by crime_.
In conclusion, I argue the power of Congress to abolish slavery in the District, from Art. 1, sec. 8, clause 1, of the const.i.tution; "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 interest? 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 ent.i.tled to compensation._ They proceeded on the sound principle, that the government may in self-protection destroy the claim of its subjects even to that which has been recognized 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 such property 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 there when the public safety requires it, it may annihilate its existence _as_ property when the public safety requires it, especially if it transform into a _protection_ and _defence_ that which as _property_ perilled the public interests. In the District of Columbia there are, besides the United States" Capitol, the President"s house, the national offices, and archives of the Departments of State, Treasury, War, and Navy, the General Post-office, and Patent office. It is also the residence of the President, of all the highest officers of the government, of both houses of Congress, and of all the foreign amba.s.sadors. 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 p.r.o.nounced both by munic.i.p.al 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 const.i.tution 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 emanc.i.p.ating 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 const.i.tutional "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 a.s.sault, 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 const.i.tution, 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._" 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 pa.s.sage of Mr. Calhoun"s late resolutions in the Senate of the United States. A proceeding so extraordinary,--if indeed henceforward _any_ act of Congress in derogation of freedom and in deference to slavery, can be deemed extraordinary,--should not be pa.s.sed in silence at such a crisis as the present; especially as the pa.s.sage of one of the resolutions by a vote of 36 to 9, 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 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 bra.s.s 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 our national councils, that hereafter congressional action on this subject will 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 up-heaving 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 free states and their own birthright!_
Pa.s.sing by the resolutions generally without remark--the attention of the reader is specially solicited to Mr. Clay"s subst.i.tute 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 const.i.tution of the United States; nor without exciting a degree of just alarm and apprehension in the states recognizing slavery, far transcending in mischievous tendency, any possible benefit which could be accomplished by the abolition."
By advocating this resolution, the south shifted its mode of defence, not by taking a position entirely new, but by attempting to refortify an old one--abandoned mainly long ago, as being unable to hold out against a.s.sault however unskillfully directed. In the debate on this resolution, the southern members of Congress silently drew off from the ground hitherto maintained by them, viz.--that Congress has no power by the const.i.tution to abolish slavery in the District.
The pa.s.sage 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 pa.s.sing this resolution, and with such avowals, the south has unwittingly but explicitly, conceded the main point argued in the preceding pages, and surrendered the whole question at issue between them and the pet.i.tioners for abolition in the District.
The _only_ ground taken against the right of Congress to abolish slavery in the District is, that it 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 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 what soever 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 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 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 const.i.tutionally 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 resolution makes virtually 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 counteract the policy, or discredit the "inst.i.tutions," 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. This "implied faith," then, rests on no clause or word in the United States"
Const.i.tution, or in the acts of cession, or in the acts of Congress accepting the cession, nor on any declarations of the legislatures of Maryland and Virginia, 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, Chases, Martins, and Jennifers, of those states and times. The a.s.sertion rests _on itself alone!_ Mr. Clay _guesses_ that Maryland and Virginia _supposed_ that Congress would by no means _use_ the power given them by the Const.i.tution, 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 half a century, this _a.s.sumed 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 const.i.tutions 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 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 know their wishes by intuition, and always take them for law? 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 Maryland and Virginia notions of const.i.tutional power, _abrogate no grant_, and that to plead them in a court of law, would be of small service, except to jostle "their Honors"" gravity! He need not be told that the Const.i.tution gives Congress "power to exercise exclusive legislation in all cases whatsoever over such District;" nor that Maryland and Virginia constructed their acts of cession with this clause _before their eyes_, and declared those acts made "in _pursuance_" of it. Those states knew that the U.S. Const.i.tution 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 lead them to eschew vague implications, and to resort to _stipulations_. They knew, moreover, that those 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, const.i.tutions, 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, every ticket would turn up a prize. Toil, suffering, blood, and treasure outpoured like water over a whole generation, counselled them to make all sure by the use of explicit terms, and well chosen words, and just enough of them. The Const.i.tution of the United States, with its amendments, those of the individual states, the national treaties, and the public doc.u.ments of the general and state governments at that period, show the universal conviction of legislative bodies, that nothing should be left to be "implied," when great public interests were at stake.
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 Const.i.tution; and who that has studied the free mood of those times in its bearings on slavery--proofs of which are given in scores on the preceding pages--[See pp. 25-37.] can be made to believe that the people of the United States would have re-modelled their Const.i.tution 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 the republic? Who can believe that Virginia made such a condition, or cherished such a purpose, when Washington, Jefferson, Wythe, Patrick Henry, St. George Tucker, and all her most ill.u.s.trious men, were at that moment advocating the abolition of slavery by law; when Washington had said, two years before, that 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 Dr. 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 emanc.i.p.ations 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, 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 when at the _same_ session _every one_ of her delegation voted for the abolition of slavery in the North West Territory; a territory which she herself had ceded to the Union, and surrendered along with it her jurisdiction over her citizens, inhabitants of that territory, who held slaves there--and whose slaves were emanc.i.p.ated by that act of Congress, in which all her delegation with one accord partic.i.p.ated?
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--must we adopt the monstrous conclusion that those states _designed_ to bind Congress _never_ to terminate it?--that it was the _intent_ of the Ancient Dominion thus to _bind_ the United States by an "implied faith," and that when the national government _accepted_ the cession, she did solemnly thus plight her troth, and that Virginia did then so _understand_ it? Verily, honorable senators must suppose themselves deputed to do our _thinking_ for us as well as our legislation, or rather, that they are themselves absolved from such drudgery by virtue of their office!
Another absurdity of this "implied faith" dogma 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 const.i.tutional grant of power would have been a _breach_ of the Const.i.tution. The Congress which accepted the cession was competent to pa.s.s a resolution pledging itself not to _use all_ the power over the District committed to it by the Const.i.tution. But here its power ended.
Its resolution could only bind _itself_. It had no authority to bind a subsequent Congress. Could the members of one Congress say to those of another, because we do not choose to exercise all the authority vested in us by the Const.i.tution, therefore you _shall_ not? This would, have been a prohibition to do what the Const.i.tution gives power to do. Each successive Congress would still have gone to THE CONSt.i.tUTION 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" 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! 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, 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 within their own bounds. 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 pa.s.sed, and engross them, under the t.i.tle 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!
What a "glorious Union" this doctrine of Mr. Clay bequeaths to the people of the United States! We have been permitted to set up at our own expense, and on our 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 our 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!