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.