The Anti-Slavery Examiner, Omnibus

by American Anti-Slavery Society

By passing this resolution, and with such avowals, the south has unwittingly but explicitly, conceded the main point argued in the preceding pages, and surrendered the whole question at issue between them and the petitioners for abolition in the District.

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 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 what soever 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 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 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 constitutionally 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 resolution makes virtually 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 counteract the policy, or discredit the "institutions," 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. This "implied faith," then, rests on no clause or word in the United States' Constitution, or in the acts of cession, or in the acts of Congress accepting the cession, nor on any declarations of the legislatures of Maryland and Virginia, nor on any act of theirs, nor on any declaration of the people of those states, nor on the testimony of the Washingtons, Jeffersons, Madisons, Chases, Martins, and Jennifers, of those states and times. The assertion rests on itself alone! Mr. Clay guesses that Maryland and Virginia supposed that Congress would by no means use the power given them by the Constitution, 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 half a century, this assumed 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 constitutions 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 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 know their wishes by intuition, and always take them for law? 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 Maryland and Virginia notions of constitutional power, abrogate no grant, and that to plead them in a court of law, would be of small service, except to jostle "their Honors'" gravity! He need not be told that the Constitution gives Congress "power to exercise exclusive legislation in all cases whatsoever over such District;" nor that Maryland and Virginia constructed their acts of cession with this clause before their eyes, and declared those acts made "in pursuance" of it. Those states knew that the U.S. Constitution 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 lead them to eschew vague implications, and to resort to stipulations. They knew, moreover, 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, constitutions, 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, every ticket would turn up a prize. Toil, suffering, blood, and treasure outpoured like water over a whole generation, counselled them to make all sure by the use of explicit terms, and well chosen words, and just enough of them. The Constitution of the United States, with its amendments, those of the individual states, the national treaties, and the public documents of the general and state governments at that period, show the universal conviction of legislative bodies, that nothing should be left to be "implied," when great public interests were at stake.

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 Constitution; and who that has studied the free mood of those times in its bearings on slavery--proofs of which are given in scores on the preceding pages--[See pp. 25-37.] can be made to believe that the people of the United States would have re-modelled their Constitution 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 the republic? Who can believe that Virginia made such a condition, or cherished such a purpose, when Washington, Jefferson, Wythe, Patrick Henry, St. George Tucker, and all her most illustrious men, were at that moment advocating the abolition of slavery by law; when Washington had said, two years before, that 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 Dr. 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 emancipations 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, 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 stipulate for the perpetuity of slavery under the exclusive legislation of Congress? and that too when at the same session every one of her delegation voted for the abolition of slavery in the North West Territory; a territory which she herself had ceded to the Union, and surrendered along with it her jurisdiction over her citizens, inhabitants of that territory, who held slaves there--and whose slaves were emancipated by that act of Congress, in which all her delegation with one accord participated?

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--must we adopt the monstrous conclusion that those states designed to bind Congress never to terminate it?--that it was the intent of the Ancient Dominion thus to bind the United States by an "implied faith," and that when the national government accepted the cession, she did solemnly thus plight her troth, and that Virginia did then so understand it? Verily, honorable senators must suppose themselves deputed to do our thinking for us as well as our legislation, or rather, that they are themselves absolved from such drudgery by virtue of their office!

Another absurdity of this "implied faith" dogma 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 constitutional grant of power would have been a breach of the Constitution. The Congress which accepted the cession was competent to pass a resolution pledging itself not to use all the power over the District committed to it by the Constitution. But here its power ended. Its resolution could only bind itself. It had no authority to bind a subsequent Congress. Could the members of one Congress say to those of another, because we do not choose to exercise all the authority vested in us by the Constitution, therefore you shall not? This would, have been a prohibition to do what the Constitution gives power to do. Each successive Congress would still have gone to THE CONSTITUTION for its power, brushing 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" 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! 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, 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 within their own bounds. 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 passed, and engross them, under the title 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 Washington city, bringing Congress from time to time its "instructions" from head quarters!