Part 49 (1/2)
By voting for this resolution, the south, by a simultaneous movement, s.h.i.+fted its mode of defense, not so much by taking a position entirely new, as by attempting to refortify an old one--never much trusted in, and abandoned mainly long ago, as being unable to hold out against a.s.sault however unskilfully directed. In the debate on this resolution, though the southern members of Congress did not _professedly_ retreat from the ground hitherto maintained by them--that Congress has no power by the const.i.tution to abolish slavery in the District--yet in the main they silently drew off from it.
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 surrendered irrevocably the whole question at issue between them and the pet.i.tioners for abolition in the District. It has, unwittingly but explicitly, conceded the main question argued in the preceding pages.
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 _sole 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 whatsoever 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 _sole 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 explicitly 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 principle of the resolution makes 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 go to counteract the policy, or bring into disrepute 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--not a word alluding to it, nor one inserted with such an _intent_. 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 does it rest on any declarations of the legislatures of Maryland and Virginia made at the time, or in that generation, nor on any _act_ of theirs, nor on any declaration of the people of those states, nor on the testimony of the Was.h.i.+ngtons, Jeffersons, Madisons, Chaces, Martins, and Jennifers, of those states and times. The a.s.sertion rests _on itself alone_! Mr. Clay and the other senators who voted for the resolution, _guess_ 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 the lapse of 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 let us 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 act in the premises according to their wishes, and that too, without their _making known_ their wishes? 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 even a _senatorial hypothesis_ as to what must have been the _understanding_ of Maryland and Virginia about congressional exercise of const.i.tutional power, _abrogates no grant_, and that to plead it 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 the legislatures of Maryland and Virginia constructed their acts of cession with this clause _before their eyes_, and that both of them declared those acts made ”in _pursuance_” of said clause. Those states were aware that the United States in their 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 induce them to eschew vague implications and resort to _stipulations_. Full well did they know also 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 there would be no blanks, but making all sure by the use of explicit terms, and wisely 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, the public doc.u.ments of the general and state governments at that period, show the universal conviction of legislative bodies, that when great public interest were at stake, nothing should be left to be ”implied.”
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 ever studied the free mood of those times in its bearings on slavery--proofs of which are given in scores on the preceding pages--can for an instant believe that the people of the United States would have altered 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 this free republic? Besides, who can believe that Virginia made such a condition, or cherished such a purpose, when at that very moment, Was.h.i.+ngton, Jefferson, Wythe, Patrick Henry, St. George Tucker, and almost all her ill.u.s.trious men, were advocating the abolition of slavery by law. When Was.h.i.+ngton had said, two years before, 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 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, and was undergoing 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 stipulated for the _perpetuity_ of slavery under the exclusive legislation of Congress?
and that too at the _same_ session of Congress when _every one_ of her delegation voted for the abolition of slavery in the North West Territory; a territory which she had herself ceded to Congress, and along with it had surrendered her jurisdiction over many of 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--are we to be told that those states _designed_ to bind Congress _never_ to terminate it? Are we to adopt the monstrous conclusion that this was the intent of the Ancient Dominion--thus to _bind_ the United States by an ”implied faith,” and that when the United States _accepted_ the cession, she did solemnly thus plight her troth, and that Virginia did then so _understand_ it?
Verily one would think that honorable senators supposed themselves deputed to do our _thinking_ as well as our legislation, or rather, that they themselves were absolved from such drudgery by virtue of their office!
Another absurdity of this dogma about ”implied faith” 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. Further, 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 would only bind _itself_. Could it bind the _next_ Congress by its authority? Could the members of one Congress say to the members 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, brus.h.i.+ng 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” in the acts of cession 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! ”A good rule that works both ways.”
First, 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, the common jurisdiction of _all_, 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 in their own States. 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 Was.h.i.+ngton city, bringing Congress from time to time its ”_instructions_” from head quarters--instructions not to be disregarded without a violation of that ”good faith implied in the cession,” &c.
This sets in strong light the advantages of ”our glorious Union,” if the doctrine of Mr. Clay and the thirty-six Senators be orthodox. The people of the United States have been permitted to set up at their own expense, and on their 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 their 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!
Though this may have the seeming of mere raillery, yet an a.n.a.lysis of the resolution and of the discussions upon it, will convince every fair mind that it is but the legitimate carrying out of the _principle_ pervading both. They proceed virtually upon the hypothesis that the will and pleasure of Virginia and Maryland are _paramount_ to those of the _Union_. If the main design of setting apart a federal district had been originally the accommodation of Maryland, Virginia, and the south, with the United States as an _agent_ to consummate the object, there could hardly have been higher a.s.sumption or louder vaunting. The sole object of _having_ such a District was in effect totally perverted in the resolution of Mr. Clay, and in the discussions of the entire southern delegation, upon its pa.s.sage. Instead of taking the ground, that the benefit of the whole Union was the sole _object_ of a federal district, that it was designed to guard and promote the interests of _all_ the states, and that it was to be legislated over _for this end_--the resolution proceeds upon an hypothesis _totally the reverse_. It takes a single point of _state_ policy, and exalts it above NATIONAL interests, utterly overshadowing them; abrogating national _rights_; making void a clause of the Const.i.tution; humbling the general government into a subject--crouching for favors to a superior, and that too _on its own exclusive jurisdiction_. All the attributes of sovereignty vested in Congress by the Const.i.tution it impales upon the point of an alleged _implication_. And this is Mr. Clay's peace-offering, to appease the l.u.s.t of power and the ravenings of state encroachment! A ”compromise,”
forsooth! that sinks the general Government on _its own territory_ into a mere colony, with Virginia and Maryland for its ”mother country!” It is refres.h.i.+ng to turn from these shallow, distorted constructions and servile cringings, to the high bearing of other southern men in other times; men, who in their character of legislators and lawyers, disdained to accommodate their interpretations of const.i.tutions and charters to geographical lines, or to bend them to the purposes of a political canva.s.s. In the celebrated case of Cohens vs. the State of Virginia, Hon. William Pinkney, late of Baltimore, and Hon. Walter Jones, of Was.h.i.+ngton city, with other eminent const.i.tutional lawyers, prepared an elaborate written opinion, from which the following is an extract: ”Nor is there any danger to be apprehended from allowing to Congressional legislation with regard to the District of Columbia, its FULLEST EFFECT.