The Anti Slavery Examiner, Part 2 of 4 by American Anti Slavery Society

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THE ANTI-SLAVERY EXAMINER PART 2 OF 4

BY The American Anti-Slavery Society

1838

No. 5. THE CHATTEL PRINCIPLE THE ABHORRENCE OF JESUS CHRIST AND
THE APOSTLES; OR NO REFUGE FOR AMERICAN SLAVERY IN THE NEW
TESTAMENT.

No. 6. NARRATIVE OF JAMES WILLIAMS, AN AMERICAN SLAVE.

No. 7. EMANCIPATION IN THE WEST INDIES.

No. 8. CORRESPONDENCE, BETWEEN THE HON. F.H. ELMORE, ONE OF THE
SOUTH CAROLINA DELEGATION IN CONGRESS, AND JAMES G.
BIRNEY, ONE OF THE SECRETARIES OF THE AMERICAN
ANTI-SLAVERY SOCIETY.

No. 9. LETTER OF GERRIT SMITH, TO HON. HENRY CLAY.

No. 10. EMANCIPATION In The WEST INDIES, IN 1838.

* * * * *

NO. 5

THE ANTI-SLAVERY EXAMINER

* * * * *

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 NASSAU
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 constitution is their bill of
directions to their own agents--a grant authorizing the exercise of
certain powers, and prohibiting that of others. In the Constitution 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
constitutions 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
Constitution, but presupposed and assumed 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
constitutionally pass ex post facto laws in criminal cases, nor suspend
the writ of habeas corpus, nor pass 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 constitutions 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 asserted 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 Constitution
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 Constitution, 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 circumstances, 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 assemble. 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' Constitution 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 CONSTITUTIONAL 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 Constitution--the people thus committing to the
legislature a portion of their sovereignty, and specifying in their
constitutions 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 Constitution, 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 constitution
graduates the power of Congress by the standard of those legislatures?
Was the United States' constitution 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 constitutional 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 constitutional tether, with
which to curb congressional action. THE CONSTITUTION OF THE UNITED
STATES gives power to Congress, and takes it away, and _it alone_.
Maryland and Virginia adopted the Constitution _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' constitution,
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_ title to him, can it not
annul the artificial title, and leave the original owner to hold himself
by his original title?

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 passed in 1102.
The memorable Irish decree, "that all the English slaves in the whole of
Ireland, be immediately emancipated and restored to their former
liberty," was issued in 1171. Slavery in England was abolished by a
general charter of emancipation in 1381. Passing 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 emancipated 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 passed an act of abolition in 1780, Connecticut in 1784;
Rhode Island, 1784; New-York, 1799; New-Jersey, in 1804; Vermont, by
Constitution, in 1777; Massachusetts, 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 emancipation; 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 Constitution of Mississippi gives the General Assembly power to make
laws "to oblige the owners of slaves to _treat them with humanity_." The
Constitution of Missouri has the same clause, and an additional one
making it the DUTY of the legislature to pass 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 God 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 constitutionally
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 passed 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
passed 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 pass laws "to
prevent _horses_ from being cruelly abused," it can pass 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 _Constitutions_, by
giving the legislature power to emancipate such slaves as may "have
rendered the state some distinguished service," and others by express
prohibitory restrictions. The Constitution 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 Constitution a special clause, for the express purpose of
restricting a nonentity!--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
Constitutions 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 passed 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, passed 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
_emancipated_ by the above law. North Carolina and Georgia in their acts
of cession, transferring to the United States the territory now
constituting 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 asserted 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 constitution, such removal
emancipates them, such law or constitution abolishing their slavery.
This principle is asserted 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. Lasselle, 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 emancipated her.

6. EMINENT STATESMEN, THEMSELVES SLAVEHOLDERS, HAVE CONCEDED THIS POWER.
Washington, in a letter to Robert Morris, April 12, 1786, says: "There
is not a man living, who wishes more sincerely than I do, to see a plan
adopted for the abolition of slavery; but there is only one proper and
effectual mode by which it can be accomplished, and that is by
_legislative_ authority." In a letter to Lafayette, May 10, 1786, he
says: "It (the abolition of slavery) certainly might, and assuredly
ought to be effected, and that too by _legislative_ authority." In a
letter to John Fenton Mercer, Sept. 9, 1786, he says: "It is among my
first wishes to see some plan adopted by which slavery in this country
may be abolished by _law_." In a letter to Sir John Sinclair, he says:
"There are in Pennsylvania, _laws_ for the gradual abolition of slavery,
which neither Maryland nor Virginia have at present, but which nothing
is more certain than that they _must have_, and at a period not remote."
Jefferson, speaking of movements in the Virginia Legislature in 1777,
for the passage of a law emancipating the slaves, says: "The principles
of the amendment were agreed on, that is to say, the freedom of all born
after a certain day; but it was found that the public mind would not
bear the proposition, yet the day is not far distant when _it must bear
and adopt it_."--Jefferson's Memoirs, v. i. p. 35. It is well known that
Jefferson, Pendleton, Mason, Wythe and Lee, while acting as a committee
of the Virginia House of Delegates to revise the State Laws, prepared a
plan for the gradual emancipation of the slaves by law. These men were
the great lights of Virginia. Mason, the author of the Virginia
Constitution; Pendleton, the President of the memorable Virginia
Convention in 1787, and President of the Virginia Court of Appeals;
Wythe was the Blackstone of the Virginia bench, for a quarter of a
century Chancellor of the State, the professor of law in the University
of William and Mary, and the preceptor of Jefferson, Madison, and Chief
Justice Marshall. He was the author of the celebrated remonstrance to
the English House of Commons on the subject of the stamp act. As to
Jefferson, his _name_ is his biography.