Wednesday, December 31.
The Territory of Columbia.
On motion of Mr. H. Lee, the House went into a Committee of the Whole on the bill in relation to the Territory of Columbia.
Mr. Randolph moved to strike out the first section, which is in these words:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the laws of the State of Virginia, as they existed on the first Monday of December, in the year 1800, shall be and continue in force in that part of the District of Columbia which was ceded by the said State to the United States, and by them accepted for the permanent seat of Government; and that the laws of the State of Maryland as they existed on the said first Monday in December, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted, as aforesaid.
Mr. H. Lee said, that he was far from considering this bill as an act of supererogation. The constitution had prohibited the States of Virginia and Maryland from legislating for the Territory; and it now became a question, whether the existing laws of those States were in force, which question might come before the Judiciary. To obviate all doubts, this bill, in the shape of a declaratory one, was reported.
Mr. Nicholas said, this bill is not, in my opinion, merely an act of supererogation, but an act of immense mischief. I do not agree with my colleague in the construction he gives the constitution. He is of opinion, that the powers given to Congress on this subject must be exercised by them. I think differently. These powers are like many others conferred, which may or may not be exercised. It had never been contended that we are obliged to carry into execution all the powers with which we are invested. It is true, that we have nearly exhausted the letter of our charter, in the extent to which we have gone; but this fact furnished no reason for going still further.
A construction contrary to that contended for had been given by Congress in the exercise of their power. The act of acceptance passed by Congress, confirming the cessions made by Virginia and Maryland, expressly declares, "that the operation of the laws of the State within such District shall not be affected by this acceptance until the term fixed for the removal of the Government thereto, and until Congress shall otherwise by law provide."
Great force was attached to that part of the constitution which gave Congress exclusive legislation over the Territory. But the same clause of the constitution gave the same power over forts, magazines, arsenals, &c. Yet this power had never been assumed by Congress. The possession of the right had heretofore been considered as sufficient; the exercise of it was reserved until peculiar circumstances should occur, which rendered it necessary.
I believe the committee are not prepared to sanction this bill. To sanction it would be to place the inhabitants of the Territory in a situation for which they would not be thankful. It would impose upon them all the laws of Virginia and Maryland, as they existed on the first Monday of December, without those improvements which experience may suggest.
If this bill passed, it would leave a considerable portion of the inhabitants of the Territory without any judicial authorities to which they could appeal. There were parts of Fairfax, Montgomery, and Prince George's Counties, which would have no courts to which they could apply.
Another consequence that would result from the construction attempted to be given to the constitution, was the deprivation of the inhabitants of all participation either in Federal or State legislation. As, by the construction, they would cease to be the subjects of State taxation, it could not be expected that the States would permit them, without being taxed, to be represented.
Could any man desire to place the citizens of the District in such a state? To deprive them of the common right of participating in the passage of laws which all the citizens enjoyed?
If the construction be sound, that we are bound to legislate, then all the judicial proceedings which had taken place since the first Monday in December, whatever affected either property or persons, were mere nullities. I do not, however, believe the construction to be sound. I believe it opposed both to the spirit of the constitution and to the construction hitherto given by Congress. But were the construction just, to adopt the proposed bill would be to act in a way inadequate to the importance of the subject, which, involving in it a system of government for a large portion of citizens, ought not to be acted upon with precipitation, but ought to be conducted by the collected wisdom of Congress derived from mature and deliberate reflection.
Mr. H. Lee said, my colleague is wrong in supposing this bill a part of a permanent system. It is only intended to cure an evil which some persons have supposed to exist, from the doubtful jurisdiction of the States of Virginia and Maryland.
Mr. Otis said, though I respect the talents of the committee who brought in the bill, yet I cannot discover that it contains a single new view or provision. Though I am myself at a loss to account for the necessity of the bill, the committee were certainly right, if they entertained doubts, to attract the attention of the House to them.
By the first act of Congress accepting the cession, the United States have legislated in the very way the gentleman from Virginia now proposes. As it appeared at that time impossible to form a code of laws, those of Maryland and Virginia were confirmed till Congress should legislate.
If it were true that Congress were bound to legislate themselves, an equal obligation existed at that time with that which existed at present. Their not having done so was a strong argument against the construction now contended for.
To pass such a law as that now offered, instead of removing, would be the very means of exciting doubt. The time may arrive when Congress must go into the subject in detail, and make those provisions that were necessary for a great city. But at present such a step was not called for: the Territory had gone on very well for ten years without the interposition of Congress, and I have no doubt it will continue for some time to come to do well without it.
Mr. Bird said, this question, in my opinion, is susceptible of a very clear and precise solution. Did the acts of cession by the States, and of acceptance by Congress, take away the jurisdiction of those States, and vest it in Congress? The acts of Maryland and Virginia make a complete cession of soil and jurisdiction to Congress. This cession has been accepted by Congress. What is the consequence of one sovereign transferring all jurisdiction to another sovereign? Does not the power that cedes give up all right whatever to that which accepts? The words of the constitution are that Congress shall exercise exclusive legislation. If Congress exercise exclusive legislation, does it not follow that no other body can exercise any legislation whatever?
The gentleman from Virginia (Mr. Nicholas) does not deny the power altogether, but limits it, as a power that may or may not be exercised by Congress; and, in illustration of his opinion, instances the power to naturalize and to pass bankrupt laws. But the cases are not analogous. These last are powers that Congress may or may not exercise. The constitution does not apply to them the term exclusive; nor are they shut out by the actual words of that instrument or by necessary inference.
Over some objects Congress have partial authority; but in this case their authority is absolute and exclusive of all other; from which irresistibly follows the absolute cessation of all power in the ceding body.
It was undoubtedly the intention of the framers of the constitution, that after this Territory became the actual seat of Government, no authority but that of Congress should be in force.
The act of cession by the States, after stating the terms of cession, contains a proviso, that the power of legislation thereby vested in Congress, shall not impair the force of the laws of Maryland and Virginia, till Congress shall otherwise by law provide. A proviso is to prevent something from being done that without it would be done. Congress declared the same thing when they accepted the cession with the same proviso. This proviso tends to supersede the cession. Having this effect it must fall, as conflicting with the act to which it is a proviso. It must be considered as absolutely void. A proviso is intended to prevent the operation of a particular thing, not to give an operation to it. It may prevent the enaction of a particular law, but it cannot re-enact that law.
A difference of opinion seemed to exist as to the period when the powers of the States were superseded. It was the opinion of some gentlemen that they ceased on the completion of the act of cession. The committee consider them as ceasing on the first Monday in December of the present year. It became the House solemnly to settle this point before they entered into the consideration of a complicated system of government. If the Legislative powers of the States had ceased, it follows, as a necessary consequence, that the Judicial powers had also ceased.
For these reasons I think it will be best to declare that things shall remain in statu quo. If the ordinary jurisdiction established be not competent, it may easily be made so.
Mr. Randolph was not prepared to enter into a discussion of the important point before the committee. He would only state the dilemma in which the inhabitants of the District of Columbia would be placed by the construction given to the constitution by his colleague, who was of opinion that all Legislative and Judicial powers derived from Virginia and Maryland, ceased on the first Monday of December. If this construction were true, was it not equally true that the bill now proposed would be of the same validity, and of no more validity, than the act of acceptance passed by Congress.
From his being unprepared, what he offered was submitted more in the form of hints than of correct arguments. But it seemed to him that if the construction contended for should prevail, it would disfranchise the corporations of Georgetown and Alexandria, and all other corporations within the District. Would it not place the Territory in the situation of a conquered country? According to this construction, the Territory was in a state of anarchy, and murder, if committed, would be no crime.
Further, if the constitutional provision is obligatory upon us to assume exclusive legislation, are we not bound to establish uniform laws throughout the entire District? and of course are we not prohibited from establishing one system in one place, and a different system in another?
One other objection merited the gentleman's notice. The laws of Virginia precluded every officer under its Government from holding any Federal office.
From the impression made on his mind by these considerations, Mr. R. said, he would be wanting to himself and his country, if he agreed to the bill. He hoped, therefore, that the Committee would rise, and not precipitate a decision.
Mr. Harper was in favor of the motion that the committee should rise, for the purpose of recommitting the bill to a select committee. He would state his reasons: The object of the first section was to assume the jurisdiction. That was his object. He wished the establishment of a Judiciary competent to the carrying into effect the laws now existing. He wished this object to be accomplished in a fair, open, direct way. At some future period Congress might find it necessary to enter on a system of legislation in detail, and to have established numerous police regulations. At this time, the present exigency would be provided for by confirming the laws of Virginia and Maryland, and by giving effect to them by the institution of a competent Judicial authority.
Mr. Nicholas said, that he should vote for the committee rising, from a different motive from that which actuated the gentleman from South Carolina. He hoped the business would be suffered for the present to sleep.
The construction given to the constitution by the gentleman from New York, did not render it merely expedient in Congress to assume jurisdiction, but rendered it an absolute duty. In reply to his remarks, the gentleman had alleged that the authority given by the constitution in relation to this Territory, differed from the other powers vested in Congress, inasmuch as the former investment of power had connected it with the word exclusive; whereas the latter had not. The meaning which Mr. N. affixed to that word, was altogether different from the one now contended for. The constitution does not say Congress shall possess exclusive power of legislation; but that they shall have power of exercising exclusive legislation.
The acts of cession and acceptance contained a construction directly opposed to that now made. They declare that the laws of Maryland and Virginia shall continue till Congress shall alter them. Their cessation is made to depend on an uncertain event, viz: whether Congress shall legislate or not. Not a tittle in the constitution or in our practice, under the constitution, infringed our liberty to act or not to act.
What would be the effect of this law on the inhabitants of the Territory? It would impose on them the laws of Maryland and Virginia, as they existed on a particular day, without any capability of improvement from the improved code of those States.
Mr. N. had heard of no inconveniences which had arisen from the non-assumption of power by Congress. The people in the Territory of Columbia had been a happy people for more than a hundred years under their State Governments; and, he had no doubt, would remain so without the interposition of Congress, who, at present, were unqualified to act.
After some further remarks by Messrs. Harper and H. Lee, the question was taken on the committee rising, and carried without a division.
The committee rose; the Chairman requested leave to sit again, which was not granted.
Mr. Harper then moved to recommit the bill to the same committee that introduced it. He said, the objection made by the gentleman from Virginia to the assumption of power by Congress goes to say that the constitutional provision, the acts of cession of Maryland and Virginia, and the act of acceptance by Congress, shall be all a dead letter; and that the Territory shall continue, as heretofore, under its old jurisdiction. This was, to all intents and purposes, the amount of the gentleman's remarks. He asked, what necessity for the exercise of power by Congress? Had not the citizens lived happily for a hundred years under the State Governments? This Mr. H. did not dispute. It was probably true that they had lived as happily as other portions of citizens under the State Governments. But the provision of the constitution on this subject had not been made with this view. It was made to bestow dignity and independence on the government of the Union. It was to protect it from such outrages as had occurred when it was differently situated, when it was without competent Legislative, Executive, and Judicial power, to ensure to itself respect. While the government was under the guardianship of State laws, those laws might be inadequate to its protection, or there might exist a spirit hostile to the general government, or at any rate indisposed to give it proper protection. This was one reason, among others, for the provisions of the constitution, confirmed and carried into effect by the acts of Maryland and Virginia, and by the act of Congress.
The object of the gentleman was to defeat all these acts and all these arrangements, in subversion of that provision which the constitution had made, and of that necessity which it had foreseen.
The gentleman from Virginia requires more time. He thinks we are not prepared to legislate. But if his (Mr. H.'s) ideas were adopted, there would be no occasion for this. The Territory has laws; and Mr. H. believed these laws would answer very well for fifty years, without giving Congress much trouble to modify them.
The establishment of a Judiciary would be very easy, and would require little time. As to a police, it may be necessary hereafter. At present it was not necessary. With regard to a corporation, he was against it at present, and he did not think it would ever be necessary.
Mr. Nicholas did not consider the power imparted by the constitution as imperative. He, therefore, could not fairly be charged with a desire to deviate from the designs of its framers. The power was like a coat of armor, intended to protect the Government in periods of danger, and not to be worn at all times for parade and show.
Remarks had been made to show that the dignity and independence of the Government required the assumption. All such arguments, when set against the happiness of the people, were inconclusive; Mr. N. had always been taught to consider the true dignity of the Government as indissolubly connected with the happiness of the people; and was unable to unlearn all that he had heretofore acquired to this effect.
Mr. Craik agreed with the member from South Carolina, as far as his remarks went, but he did not think they went far enough. He was himself friendly to the institution of a local government for local purposes, leaving all Federal powers to Congress. If the bill should be recommitted, he would be prepared to offer a plan conformably to these ideas. He felt no alarm at the doubts suggested of the validity of the laws of Maryland and Virginia. He believed that they were still in force; and did not think there was any absolute necessity for Congress to act at all at present. Still, he thought that delay would only multiply the inconveniences already experienced in the formation of a plan of government. A plan might be framed, to protect the General Government as well as, in some degree, the inhabitants of the Territory, from any tyranny that some gentlemen supposed might be exercised by Congress.
He concluded, by expressing a hope that a completely organized system might be formed and adopted.