The Anti-Slavery Examiner
Chapter 40 : The Ohio and Indiana resolutions, by taking for granted the _general_ power of Congress

The Ohio and Indiana resolutions, by taking for granted the _general_ power of Congress over the subject of slavery, do virtually a.s.sert its _special_ power within its _exclusive_ jurisdiction.

5. The power of Congress to abolish slavery in the District, has been conceded by bodies of citizens in the slave states. The pet.i.tion of eleven hundred citizens of the District of Columbia, in 1827, has been already mentioned. "March 5, 1830, Mr. Was.h.i.+ngton presented a memorial of inhabitants of the county of Frederick, in the state of Maryland, praying that provision may 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 fur 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 which 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 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 the power of Congress to abolish slavery in the District. The testimony of Messrs. Doddridge, Powell, and Alexander, of Virginia, Chief Justice Cranch, and Judges Morsell 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 const.i.tution, 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, John Randolph 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 South Carolina, objected to the printing, but "expressly admitted the right of Congress to grant to the people of the District any measures which they might deem necessary to free themselves from the deplorable evil."--(See letter of Mr. Claiborne, of Mississippi, to his const.i.tuents, published in the Was.h.i.+ngton Globe, May 9, 1836.) The sentiments of Henry Clay 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, Chilton, Lyon, and Richard M. Johnson, of Kentucky, A.H. Shepperd, of North Carolina, Messrs. Armstrong and Smyth, of Virginia, Messrs. Dorsey, Archer, and Barney, of Maryland, and Johns, of Delaware, with numerous others from slave states, have a.s.serted 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 not begin _here_? Within the ten miles square, you have _undoubted power_ to exercise exclusive legislation. _Produce a bill to emanc.i.p.ate the slaves in the District of Columbia_, or, if you prefer it, to emanc.i.p.ate 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 United States' Senate, February 1, 1820, (National Intelligencer, April 29, 1820,) he says: "Congress has the express power stipulated by the Const.i.tution, to exercise exclusive legislation over this District of ten miles square. Here slavery is sanctioned by law. 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 EMANc.i.p.aTION RESTS WITH CONGRESS ALONE. Why, then, let me ask, Mr. President, why all this sensibility--this commiseration--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 p.r.o.nouncing that Congress does not possess the power of abolis.h.i.+ng 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. Tompkins, De Witt Clinton, and others, whose names are a host.[A] It is consistent also, with his recommendation in his late message on the 5th of last month, in which, speaking of the District, he strongly urges upon Congress "a thorough and careful revision of its local government," speaks of the "entire dependence" 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 residence 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 circ.u.mstances peculiarly demanded."

[Footnote A: Mr. Van Buren, when a member of the Senate of New-York, voted for the following preamble and resolutions, which pa.s.sed 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 const.i.tutional barrier should be interposed to prevent its further extension_: and that the const.i.tution 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 indispensable condition of admission." ]

The tenor of Senator Tallmadge's speech on the right of pet.i.tion, in the last Congress, 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.

After presenting this array of evidence, _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 unconst.i.tutional, adds, "But I am at a loss to conceive why gentlemen should arouse all their sympathies upon this occasion, when they permit them to lie dormant upon the same subject, in relation to other sections of country, in which THEIR POWER COULD NOT BE QUESTIONED." Then follows immediately the a.s.sertion of congressional power to abolish slavery in the District, as already quoted. 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 Pennsylvania, in a speech in the House of Representatives, on the motion to print Mr. Pinckney's Report, is thus reported in the Was.h.i.+ngton 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 const.i.tution, 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 a.s.sertion, however, is too obvious to admit of argument--and we believe HAS NEVER BEEN DISPUTED BY PERSONS WHO ARE FAMILIAR WITH THE CONSt.i.tUTION."

Finally--an explicit, and unexpected admission, that an "_over-whelming majority_" of the _present_ Congress concede the power to abolish slavery in the District, has just been made by a member of Congress from South Carolina, in a letter published in the Charleston Mercury of Dec.

27, well known as the mouth-piece of Mr. Calhoun. The following is an extract:

"The time has arrived when we must have new guarantees under the const.i.tution, or the union must be dissolved. _Our views of the const.i.tution are not those of the majority. An overwhelming majority think that by the const.i.tution, 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_."

In another letter, the same correspondent says:

"_The fact is, it is vain to attempt_, AS THE CONSt.i.tUTION IS NOW, _to keep the question of slavery out of the halls of Congress_,--until, by some decisive action, WE COMPEL SILENCE, or _alter the const.i.tution_, agitation and insult is our eternal fate in the confederacy."

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 the power given it by the const.i.tution. Nothing short of a convention of the states, and an alteration of the const.i.tution, abridging its grant of power, could have empowered Congress to accept a territory on any other conditions than that of exercising "exclusive legislation, in all cases whatsoever,"

over it.

To show the futility of the objection, here follow 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 a.s.sembly of Maryland, that the representatives of this state in the House of Representatives of the Congress of the United States, appointed to a.s.semble 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 Maryland, vol. 2, chap. 46.

The cession from Virginia was made by act of the Legislature of that State on the 3d of December, 1788, in the following words:

"Be it enacted by the General a.s.sembly, That a tract of country, not exceeding ten miles square, or any lesser quant.i.ty, 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 for ever 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 const.i.tution of the United States."

But were there no provisos to these acts? The Maryland act had _none_.

That part of the District therefore, which includes the cities of Was.h.i.+ngton and Georgetown, can lay claim to nothing with which to ward off the power of Congress. 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 wider scope; 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? The subject must have been too "delicate," even for the most distant allusion! The mystery of silence is solved!!

But again, Maryland and Virginia, in their acts of cession, declare them to be "in pursuance of" that clause of the const.i.tution which gives to Congress "exclusive legislation in all cases whatsoever over" the ten miles square--thus, instead of _restricting_ that clause, both States gave an express and decided confirmation of it. Now, their acts of cession either accorded with that clause of the const.i.tution, or they conflicted with it. If they conflicted with it, _accepting_ the cessions was a violation of the const.i.tution. If they accorded, the objector has already had his answer. The fact that Congress accepted the cessions, proves that in its view their _terms_ did not conflict with the const.i.tutional grant of "power to exercise exclusive legislation in all cases whatsoever over such District." The inquiry whether these acts of cession were consistent or inconsistent with the United States const.i.tution, is totally irrelevant to the question at issue. What saith the CONSt.i.tUTION? That is the question. Not, what saith Virginia, or Maryland, or--equally to the point--John Bull! If Maryland and Virginia had been the authorized interpreters of the const.i.tution for the Union, these acts of cession could hardly have been magnified more than they were by Messrs. Garland and Wise in the last Congress. A true understanding of the const.i.tution 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 const.i.tution gave Congress power to abolish slavery in it.

This comes with an ill grace from Maryland and Virginia. They _knew_ the const.i.tution. 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 const.i.tution. 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 legalisation in all cases whatsoever over such District," &c. 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 const.i.tution_. The const.i.tution--the CONSt.i.tUTION--that is the point. Maryland and Virginia "suppositions"

must be potent suppositions, to abrogate a clause in the United States Const.i.tution! 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 endors.e.m.e.nt 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 _const.i.tutional 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 put 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, right of representation, or even the electoral franchise, would be 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 pet.i.tioned for it!! Southern members of Congress at the present session 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? Why mock it by demanding impossibilities? Pet.i.tioning, according to Mr. Wise, is, in matters of legislation, omnipotence itself; the very source of all const.i.tutional 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 pet.i.tion for the exercise of a power that is _not_, creates it--to pet.i.tion 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 pet.i.tions of the citizens of the District give Congress the _right_ to abolish slavery, they impose the _duty_; if they confer const.i.tutional authority, they create const.i.tutional 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 const.i.tutional 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 const.i.tution, 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 const.i.tution--coming from both sides, they neutralize each other. To argue a const.i.tutional 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 s.h.i.+ft is some eas.e.m.e.nt when sorely pushed. If this question is to be settled by "suppositions," suppositions shall be forth coming, and that without stint.

First, then, I affirm that the North ratified the const.i.tution, "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 const.i.tution was to be surrendered to Congress after twenty years, would cast it headlong.

Would the North have adopted the const.i.tution, giving three-fifths of the "slave property" a representation, if it has "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, 30 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 Alexander Hamilton, Benjamin Franklin, Roger Sherman, Elbridge Gerry, William Livingston, John Langdon, and Rufus King have been such madmen, as to sign the const.i.tution, 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 const.i.tution, slavery was regarded as a fast waning system. This conviction was universal.

Was.h.i.+ngton, Jefferson, Patrick Henry, Grayson, St. George Tucker, Madison, Wythe, Pendleton, Lee, Blair, Mason, Page, Parker, Edmund Randolph, Iredell, Spaight, Ramsey, William Pinckney, Luther Martin, James McHenry, Samuel Chase, and nearly all the ill.u.s.trious names south of the Potomac, proclaimed it before the sun, that the days of slavery were beginning to be numbered. A reason urged in the convention that formed the United States const.i.tution, 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 even been. (See speech of Mr. Burrill, of R.I., on the Missouri question.)

I now proceed to show by testimony, that at the date of the United States const.i.tution, and for several years before and after that period, slavery was rapidly on the wane; that the American Revolution with the great events preceding accompanying, and following it, had wrought an immense and almost universal change in the public sentiment of the nation of the subject, powerfully impelling it toward the entire abolition of the system--and that it was the _general belief_ that measures for its abolition throughout the Union, would be commenced by the individual States generally before the lapse of many years. A great ma.s.s of testimony establis.h.i.+ng this position is at hand and might be presented, but narrow s.p.a.ce, little time, the patience of readers, and the importance of speedy publication, counsel brevity. Let the following proofs suffice. First, a few dates as points of observation.

The first _general_ Congress met in 1774. The revolutionary war commenced in '75. Independence was declared in '76. The articles of confederacy were adopted by the thirteen states in '78. Independence acknowledged in '83. The convention for forming the U.S. const.i.tution was held in '87, the state conventions for considering it in '87, and '88. The first Congress under the const.i.tution in '89.

Dr. Rush, of Pennsylvania, one of the signers of the Declaration of Independence, in a letter to the celebrated Granville Sharpe, May 1, 1773, says: "A spirit of humanity and religion begins to awaken in several of the colonies in favor of the poor negroes. The clergy begin to bear a public testimony against this violation of the laws of nature and christianity. Great events have been brought about by small beginnings. _Anthony Benezet stood alone a few years ago in opposing negro slavery in Philadelphia_, and NOW THREE-FOURTHS OF THE PROVINCE AS WELL AS OF THE CITY CRY OUT AGAINST IT."--(Stuart's Life of Sharpe, p.