Part 44 (1/2)

No. 5

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.

NEW-YORK:

PUBLISHED BY THE AMERICAN ANTI-SLAVERY SOCIETY

NO. 143 Na.s.sAU-STREET.

1838.

This periodical contains 3-1/2 sheets--Postage under 100 miles, 6 cts., over 100, 10 cts.

POWER OF CONGRESS

OVER THE

DISTRICT OF COLUMBIA.

A civilized community presupposes a government of law. If that government be a republic, its citizens are the sole _sources_, as well as the _subjects_ of its power. Its const.i.tution is their bill of directions to their own agents--a grant authorizing the exercise of certain powers, and prohibiting that of others. In the Const.i.tution of the United States, whatever else may be obscure, the clause granting power to Congress over the Federal District may well defy misconstruction. Art. 1, Sec. 8, Clause 18: ”The Congress shall have power to exercise exclusive legislation, _in all cases whatsoever_, over such District.” Congress may make laws for the District ”in all _cases_,” not of all _kinds_; not all _laws_ whatsoever, but laws ”in all _cases_ whatsoever.” The grant respects the _subjects_ of legislation, _not_ the moral nature of the laws. The law-making power every where is subject to _moral_ restrictions, whether limited by const.i.tutions or not. No legislature can authorize murder, nor make honesty penal, nor virtue a crime, nor exact impossibilities. In these and similar respects, the power of Congress is held in check by principles, existing in the nature of things, not imposed by the Const.i.tution, but presupposed and a.s.sumed by it. The power of Congress over the District is restricted only by those principles that limit ordinary legislation, and, in some respects, it has even wider scope.

In common with the legislatures of the States, Congress cannot const.i.tutionally pa.s.s ex post facto laws in criminal cases, nor suspend the writ of habeas corpus, nor pa.s.s a bill of attainder, nor abridge the freedom of speech and of the press, nor invade the right of the people to be secure in their persons, houses, papers, and effects, nor enact laws respecting an establishment of religion. These are general limitations. Congress cannot do these things _any where_. The exact import, therefore, of the clause ”in all cases whatsoever,” is, _on all subjects within the appropriate sphere of legislation_. Some legislatures are restrained by const.i.tutions, from the exercise of powers strictly within the proper sphere of legislation. Congressional power over the District has no such restraint. It traverses the whole field of legitimate legislation. All the power which any legislature has within its own jurisdiction, Congress holds over the District of Columbia.

It has been objected 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 convention that framed the Const.i.tution aimed to provide for a _single_ case only, why did they provide for ”_all_ cases whatsoever?” Besides, this clause was opposed in many of the state conventions, because the grant of power was not restricted to police regulations _alone_. In the Virginia Convention, George Mason, the father of the Virginia Const.i.tution, Patrick Henry, Mr. Grayson, and others, a.s.sailed it on that ground. Mr. Mason said, ”This clause gives an unlimited authority in every possible case within the District. He would willingly give them exclusive power as far as respected the police and good government of the place, but he would give them no more.” Mr. Grayson said, that control over the _police_ was all-sufficient, and ”that the Continental Congress never had an idea of exclusive legislation in all cases.” Patrick Henry said, ”Is it consistent with any principle of prudence or good policy, to grant _unlimited, unbounded authority?_” Mr. Madison said in reply: ”I did conceive that the clause under consideration was one of those parts which would speak its own praise. When any power is given, its delegation necessarily involves authority to make laws to execute it....

The powers which are found necessary to be given, are therefore delegated _generally_, and particular and minute specification is left to the Legislature.... It is not within the limits of human capacity to delineate on paper all those particular cases and circ.u.mstances, in which legislation by the general legislature, would be necessary.”

Governor Randolph said: ”Holland has no ten miles square, but she has the Hague where the deputies of the States a.s.semble. But the influence which it has given the province of Holland, to have the seat of government within its territory, subject in some respects to its control, has been injurious to the other provinces.” The wisdom of the convention is therefore manifest in granting to Congress exclusive jurisdiction over the place of their session. [_Deb. Va. Con._, p. 320.]

In the forty-third number of the ”Federalist,” Mr. Madison says: ”The indispensable necessity of _complete_ authority at the seat of government, carries its own evidence with it.”