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Letter from Hannis Taylor to Honorable Thomas H. Carter, United States Senator, Rendering An Opinion As To The Constitutionality of the Act of Retrocession of 1846 – January 17, 1910
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Scan from the Internet Archive


Someday, when I have more free time, I will post the full text of Hannis Taylor’s letter to Senator Thomas Carter. In the meantime, you can download the PDF of this document and read that he believes the retrocession of Alexandria in 1846/1847 was not constitutional. I originally discovered this letter in December of 2009 when I posted a newspaper article titled “Does Virginia Own Alexandria County?” which was published in The Washington Herald the following day, January 18, 1910.


Related Retrocession Entries:

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Debate in the U.S. Senate Concerning An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia – Thursday, July 2, 1846
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Thus far I have republished R. M. T. Hunter’s speech and the House of Representatives subsequent debate on the proposed retrocession of Alexandria County. Almost two months later, on July 2nd, 1846, the United States Senate took up the debate. Unlike the previous two entries which came from the Congressional Globe, this transcription comes from the Abridgment of the Debates of Congress. I’m curious as to how much debate was shorted for the abridgment.


Print from the Library of Congress


Retrocession of Alexandria.

On motion of Mr. ARCHER, the Senate proceeded to the consideration of the bill for the retrocession of the city and county of Alexandria to the State of Virginia.

Mr. ARCHER observed that he was willing that the vote should be taken upon the bill without discussion, provided the opponents of the bill offered no remarks upon it which would force them into a discussion.

Mr. BENTON said this was a case in which he desired to vote with a majority of the inhabitants of that portion of the District which it was proposed to surrender to the State of Virginia; but he did not at present know what the wishes of that majority were.

Mr. ARCHER observed, that one of the clauses of the bill now before the Senate provided that the bill should not take effect until the wishes of the inhabitants were ascertained by a vote, to be taken in the manner provided for in another clause of the bill, to wit: the vote of the white inhabitants of six months’ residence.

Mr. HAYWOOD said the bill had been referred to the committee of which he had the honor to be chairman, and it was perhaps proper, therefore, though he had no intention of making a speech upon the subject, that he should draw the attention of the Senate to the fact that the bill provides for taking the sense of the people of the county and city of Alexandria before the bill should go into effect. The committee, however, thought it worthy of consideration, whether it was not the desire of change which prompted the introduction of this innovation, rather than the necessity for the innovation. If there was any particular evil to be remedied by diminishing the extent of the ten miles square, the committee had not been apprised of it; if any particular good to be obtained, they were not apprised. When the retrocession was first suggested to the consideration of the Senate, doubts were entertained by many how far it was competent for Congress to recede what the constitution had for a particular purpose authorized them to accept. The States of Maryland and Virginia had ceded this territory to Congress, to be taken under its exclusive jurisdiction for the seat of Government; and Congress, in the execution of that intention, solemnly declared by enactment its acceptance of the grant, and that this District should be perpetually the seat of Government. Individual citizens of the District, a minority, if they chose to assume that they were so, had purchased property and become residents of the county under this pledge; and unless there was some evil to be remedied, or decided advantage to be gained by the change, which would compensate those citizens, where was the propriety of violating that pledge? He had been unable to see any necessity for it. It was equally the duty of the Government to protect minorities and majorities; and a majority could have no absolute right or authority to compel retrocession if additional burdens were to be imposed as a consequence upon the minority. He spoke not in reference to any constitutional objection, but merely in reference to the act of Congress constituting this District the perpetual seat of the Federal Government.

There was another difficulty which the committee found somewhat embarrassing, and, it was, whether the State of Virginia or of Maryland owned the Potomac River at the time of the cession. If the county of Alexandria were ceded to Virginia, it might possibly be the means of reviving the contest, and making it a contest between Virginia and the District. This would be a matter of very considerable importance to the city of Georgetown. If the bill was to be passed, he thought it ought at least to be amended so as to make it more definite, and that the river should be kept within the United States jurisdiction. It might be of importance that the jurisdiction of the United States should not be limited at all. He believed the Senator from Massachusetts had expressed a desire to offer some remarks upon this question. He did not perceive that Senator now in his seat; for his own part, he would be perfectly willing that the vote should be taken without discussion.

Mr. MILLER said he was inclined to think that the subject was of more importance than he had at first view supposed. His first impressions were in favor of the bill, for he supposed that the whole matter depended very much, upon the wishes of the people of Alexandria and Virginia. But, upon an examination of the subject, he found himself in great doubt as to whether Congress had the power to pass such an act; and, even if they had the power, he was perfectly convinced that it would not be good policy to do it.

Mr. M. then went into an argument upon the subject of the power of Congress in this matter, contending that if Congress had the power to cede away any part of the District, they had the power to cede the whole, and thereby entirely defeat the intention of the constitutional provision in regard to the seat of Government. Instead of doing this, he hoped that Congress would, by a wise and liberal policy, make it the interest of the residents of all parts of the District to continue within the same jurisdiction.

Mr. PENNYBACKER replied to the arguments of the Senator from New Jersey, and maintained that Congress possessed the power to cede a portion of the District to the State of Virginia. He contended further that the portion proposed to be ceded did not, in contemplation of the first law that was passed on the subject, constitute a portion of the ten miles square at all.

Mr. JOHNSON, of Maryland, moved that the Senate adjourn; which was disagreed to—ayes 16, noes 18.

On motion of Mr. BENTON, the Senate, not having come to any vote upon the bill, at about half-past three o’clock proceeded to the consideration of Executive business, and, after some time spent therein, the doors were reopened, and the Senate adjourned.


Thursday, July 2.
Retrocession of Alexandria.

Mr. ARCHER moved that the prior orders of the day be postponed, and that the Senate resume the consideration of the bill for the retrocession of the town and county of Alexandria to the State of Virginia; which motion was agreed to.

The bill was then considered as in Committee of the Whole, when

Mr. R. JOHNSON rose and stated that, as a member of the Committee of tho District of Columbia, and as having voted in committee in favor of this bill, he desired to state the grounds on which he had formed his opinion. He went into a review of the constitutional provision relative to the establishment of a seat of Government, and to the proceedings of Congress with regard to its location within this District, and insisted that there was nothing in either to prohibit a retrocession of tho ten miles square to the States from which it was taken, or any portion thereof. He supposed that an absolute necessity might arise for the removal of the seat of Government, from the possession of this District by an enemy. Could not Congress fix on another seat for its deliberations? and, in that case, could it not cede this District back to the States to which it originally belonged? He stated that Alexandria complained of having been neglected by Congress, and he presumed she had good reason for this complaint; for it was only reasonable that Congress should be more favorable to the portion of the District which was more immediately the seat and scene of its labors.

Mr. MILLER briefly replied, maintaining that Congress had no power to receive a cession of the soil and sovereignty, except for a specified object; and that the object of this cession being the establishment of the seat of Government, it could not be retroceded without the abandonment of that object. He thought a great number of the citizens of the county, being out of the city of Alexandria, were opposed to retrocession.

Mr. HANNEGAN made a few remarks in favor of the bill. The citizens desired to be restored to their original rights, and we have no right to refuse them.

Mr. CALHOUN then rose, and said that he had not been able to discover any valid reason why the retrocession should not be made. The first and great point for consideration was, whether, by this retrocession, the object of the cession would be impaired? He could not see how any evil result could possibly follow. It was a detached portion of the District, lying on the other side of the river, and in no way calculated to facilitate the legislation of the General Government. Nor did he see how any acquired rights could be injured. He did not see how the retrocession could injuriously affect the county of Washington, as he believed it was called, or Georgetown. The next question then was, Was there any serious constitutional objection? According to his judgment there could not be any such, unless there was somewhere in the constitution a prohibitory clause. It was in the power of the Government to remove its seat if it thought proper, unless there was some express provision to the contrary. Now, he saw no such provision in the constitution. It belonged to gentlemen to prove that the retrocession would be unconstitutional. If they had a right— which he held to be incontestable— to remove the seat of Government, the right of parting with any portion of it was apparent. Nor was there, in his opinion, any violation of a pledge on the part of Congress as argued by the Senator from North Carolina, (Mr. HAYWOOD.) The act of Congress, it was true, established this as the permanent seat of Government; but they all knew that an act of Congress possessed no perpetuity of obligation. It was a simple resolution of the body, and could be at any time repealed. Although be thought that Congress had the power to remove the seat of Government, yet he was not to be understood as supposing that it would ever be expedient or wise to remove it. He could not concur in the views presented by Mr. Madison on the subject of the location of the seat of Government, and read yesterday by the Senator from Virginia, (Mr. PENNYBACKER) Mr. Madison made an elaborate argument in favor of the position that the seat of Government ought to be in the centre. As far as the seats of government of the States were concerned, that might be a just argument; but the history of the world would show that the seats of national government never were, or scarcely ever were, situated in the centre, and there was reason for that general arrangement. They were always situated on the frontier the most exposed. Where was London, the seat of the British Government? On the south-east frontier of the kingdom, looking towards the continent of Europe. That of France, Paris, was in the most exposed position. So with regard to the seat of Government in Russia, and so, indeed, with regard to the capitals of all the chief nations of the world. In the nature of things it must be so. Now, if that was true in the general, it was pre-eminently true of this Confederacy; for the Federal Government looked almost exclusively to their foreign relations. And here it had been wisely located; and here, in his opinion, it would continue, so long as the institutions of the Republic endured. If the seat of Government was ever changed, it would be in consequence of some other cause than the retrocession of Alexandria, which could not possibly in any way affect that matter. There might be a change from disruption, or in consequence of some strong local interest prevailing, though under their equal system of Government, that was hardly to be feared. If great inconvenience would arise to members at distances extremely remote, murmurs might originate, and produce such a change. Yet, even on that score, there was not much ground for apprehension, as the equitable arrangement of mileage had placed members on a perfect equality, those farthest removed, and whose home and family associations and affections were most interfered with, receiving appropriate compensation. As it was evident from the temper of the Senate that the bill would pass, he would not longer detain them by any remarks.

Mr. ASHLEY inquired what effect would be produced by the retrocession with regard to the debt of Alexandria?

Mr. CALHOUN said there were abler lawyers than himself in the body; but he supposed that not the slightest effect on the debt would be produced.

Mr. PENNYBACKER expressed the same opinion.

Mr. ALLEN expressed his regret that the discussion had passed beyond the bill, and added, that he rose only for the purpose of dissenting from the views expressed by the Senator from South Carolina (Mr. CALHOUN) in regard to the location of the seat of Government. He (Mr. A.) had no intention to agitate the question of changing the seat of Government. It might not be proper to do so at the present time; but the general reasons urged by the Senator from South Carolina would give it an eternity of location at this point, and it was to that idea that he (Mr. A.) objected. The Senator had alluded to the example of other nations of the world— to those ancient monarchies where the location of the capital was a matter dependent upon the caprice of the court, and not the convenience of the people. Was it to be supposed for a moment that such examples were proper for the imitation of this Confederacy? No. He thought that the United States should on that very ground adopt a different policy. The location of the seat of Government near the seaboard in the vicinity of the commercial cities, gave to those cities a preponderating influence in the counsels of the Congress of the United States, five hundred fold to one over the influence exerted by a corresponding number of people situated in the vast interior. They had no committees from the banks of the Missouri, the Mississippi, or even of the Ohio, “lobbying” in these halls to regulate tariff duties. No. They had no companies of individuals in those western regions, and delegated to the Capitol with the view of obtaining laws to meet tho wishes of individual and sectional interests, instead of tho wants and wishes of the great mass of the nation. The whole tendency of the Government since its foundation had been to place itself exclusively under the control of the commercial interest: and this pernicious tendency had been produced by the location of the seat of Government near the great influential commercial cities on the seaboard. He might present many illustrations of this fact. Before the telegraphic communication was established, when a bill was introduced into Congress, Wall-street had notice of it, if necessary, in fifteen hours, and in fifteen hours more the cars brought a delegation from Wall-street to regulate the details of the bill. Thus had their tariffs been formed— thus had the commercial interests overruled all others from their proximity to the Capitol. The great mass of the people— four-fifths of them— lived on the soil, and obtained from it subsistence. It was in their centre that the seat of Government should be located. These were his opinions, and he stated them not as having any immediate bearing on the bill before the House, but in opposition to the views expressed by the Senator from South Carolina, whose remarks were always entitled to high consideration, and carried with them great weight.

Mr. CALHOUN again rose, and stated that it happened, that at the Memphis Convention— a body composed of six hundred members, possessed of great intelligence, and representing almost exclusively the interests of those who lived upon the soil— a resolution was offered recommending a change of the seat of the General Government. A most extraordinary sensation was produced, and when the resolution was submitted, there was one loud-toned, overwhelming “no” opposed to the solitary voice of the mover.

Mr. ALLEN. Where was that?

Mr. CALHOUN. At the Memphis Convention.

Mr. ALLEN. Ah! that proves nothing. The only difficulty has been the choice of another site, and the contesting claims have been so numerous, that the change has not been, ere this, seriously mooted.

Mr. WESTCOTT was in favor of the bill, because it relieved the people of Alexandria from a galling disfranchisement, of which he knew something by experience.

Mr. ARCHER advocated the bill in a long and able speech.

Mr. HAYWOOD opposed the bill, and in an eloquent manner contended for the sacred immunity of the constitution, and the wise arrangement of the sages of the Revolution. He also argued the constitutional question at considerable length, and with characteristic ability.

Mr. PENNYBACKER replied.

Mr. BREESE regarded the bill as unconstitutional.

The bill was then reported to the Senate; and the yeas and nays being called for on the question of ordering it to be engrossed for a third reading, they were ordered, and, being taken, resulted as follows:

YEAS.— Messrs. Allen, Archer, Ashley, Atchison, Atherton, Barrow, Benton, Calhoun, Cameron, Chalmers, Cilley, Thomas Clayton, John M. Clayton, Corwin, Crittenden, Davis, Dayton, Fairfield, Greene, Hannegan, Jarnagin, Johnson of Maryland, Johnson of Louisiana, Lewis, Morehead, Pennybacker, Rusk, Sevier, Simmons, Turney, Westcott, and Yulee— 32.

NAYS.—Messrs. Brecse, Bright, Dickinson, Dix, Evans, Haywood, Houston, Huntington, Mangum, Miller, Niles, Phelps, Semple, and Sturgeon—14.

So the bill was ordered to a third reading.

Mr. ARCHER asked that the bill be put upon its third reading now.

No objection being offered, the bill was read a third time, and passed.

The title of the hill as passed is as follows, viz.: “An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia.”


This Congressional Debate was transcribed from a scan from Google Books. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



GAMBLERS MAY GET ALEXANDRIA FOR US – The Washington Times, October 16, 1905
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The only Supreme Court ruling on the constitutionality of the retrocession of Alexandria was in Phillips v. Payne. This the first I’ve transcribed that includes R. A. Phillips.


GAMBLERS MAY GET ALEXANDRIA FOR US


Argue That County Belongs to the District


FAMOUS QUESTION REVIVED


Federal Court Will Decide Whether Congress Legally Returned the County to Virginia


Interest in whether Alexandria county is part of the State of Virginia or of the District of Columbia has been revived through the prosecution of poolrooms in Virginia.

The cases are now before Judge Waddill, judge of the United States court of the eastern district of Virginia. His decision tomorrow may mean the opening of this celebrated question.

Ten years ago the jurisdiction of Alexandria county was questioned. The case was taken before the United States Supreme Court by R. A. Phillips, a well-known capitalist and real estate owner of Alexandria county, with offices in Washington.

The court decided that the issue was one wholly between the United States and the State of Virginia and that a private citizen was not qualified to bring it up for disposition.

Since that decision, which failed to settle the status of the county, the case has been at a standstill and is so now. There are residents of Alexandria county who now are inclined to believe that with the agitation attending the poolroom cases the retrocession of the county will again come up for serious discussion.

Return of County

In the proclamation of President Washington, Alexandria county was part of the “ten mile square” allotted as the seat of the Federal Government. In 1846, Congress voted to retrocede to Virginia “that portion of the ten mile square south of the Potomac.”

It has been contented by eminent lawyers that if Congress has that power in 1846, it has that power today to retrocede to Maryland that portion which is known as the District of Columbia. They argue further that it then has the power to change the seat of Government to Bladensburg, Jackson City, of even to Hawaii.

It is not understood that Congress ever had the power to cede away any part of the “ten mile square” defined as the limits of the District of Columbia in President Washington’s proclamation.

The activity of Mr. Phillips and other is ascribed to the lax methods which now obtain in the government of the county and the benefits to be derived from its restoration to the District.

Would Benefit Town.

The county would have the benefit of the good-roads law, the revenues from Government property, such as Arlington, the three Government bridges, and other property would revert to the District and citizens of what is now Alexandria county would have the protection of a police system and the benefits of sanitary laws which are not now in force in the county.

L. E. Phillips, the Washington attorney, a son of R. A. Phillips, said yesterday that there is practically no sanitation in the county, the police facilities are poor, and that the methods of governing the county are much in line for improvement. Should the court decide that Alexandria county is legally within the District line it would mean practically a general revision of affairs there, and one which would not only mean benefits to the people of the county, but to the county itself, and to the District of Columbia.

New Phase Brought Up.

A letter from Mr. Phillips father to Attorney John A. Lamb, counsel for the two poolroom men who now under arrest, is interesting in that it presents a phase of the matter which has not been brought prominently before the public.

The letter reads as follows:


“It is a pleasure to me to observe that you assert in a case before Judge Waddill, of the United States district court, that Alexandria county is a part of the District of Columbia, and that the act of retrocession was wholly ultra vires.

“In my opinion Congress has less right to relinquish or transfer its exclusive jurisdiction over part of the seat of Federal Government than it would have to cede away or relinquish its legislative power over postoffices and postroads.

“Of course, we all know the Constitution has become a mere political football in these modern days. We find our Federal Government in canal-digging business in foreign territory, and in the missionary business in Asiatic islands, and it is refreshing to observe occasionally a recurrence to safe principles of jurisdiction and Federal authority.

“Section 8, paragraph 17, provides for the establishment and jurisdiction of the District, and a few lines later, Section 9, paragraph 2, puts a guarantee about one good old writ- ‘The privilege of the writ of habeas corpus’ shall not be suspended. It is a striking coincidence that the provision of the Constitution violated dismembering the seat of government and the appropriate procedure for the determination of such infractions of the fundamental law are in close proximity. When, in the course of events, it may appear necessary to dismember the seat of government or remove it permanently to a new location, such a proposal must first be submitted to all the States; and with the approval of three-fourths it will become lawful.

“As for the individual citizens respecting whose rights or liberty the writ of habeas corpus is brought in this particular case. I have no interest. It is an ill wind that blows no one good, and so even the rights and liberties of an unfortunate gambler may correct the grevious error of dismembering our seat of government. It was established by our Revolutionary ancestors. I trust Judge Waddill will do his part as a judge and a patriot to restore it.

“If appealed to the Supreme Court of the United States, that august body may meet the question fully and say that under the high privilege of this particular writ, the court is bound to decide whether the District was dismembered lawfully.

“As for inconvenience that will arise respecting titles and acts of de facto government since 1847, changes of governmental control are frequent respecting territories, counties and cities and nobody has has ever been seriously hurt by them.

“R. A. PHILIPS.”


This newspaper article was transcribed from a scan of the original newspaper article on Chronicling America. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



EARLY SECESSION DAYS – The Washington Times, August 12, 1900
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EARLY SECESSION DAYS - The Washington Times, August 12, 1900


The Sentiment Had No Bearing on the National Union.


Efforts of Alexandria and Georgetown to Be Release From Their Association With the City of Washington- Appeals to the Maryland and Virginia Legislatures.


The exclusive jurisdiction of the United States was extended over the District of Columbia on the 27th of February, 1801, and almost immediately plans were proposed for a change in the District bounds, or for its entire abolition. The act of March 3, 1791, which provided that nothing therein should authorize the erection of public buildings on the Virginia side of the river had created dissatisfaction there before the United States took control, and at the third session which Congress held in Washington Mr. Bacon, of New York [actually Massachusetts], introduced a bill to cede back to Maryland and Virginia the land and jurisdiction which made the District of Columbia. On the 9th of February, 1803, the vote was taken on this proposal, and it was found to have only twenty-two supporters in the House of Representatives. In 1804 the attempt to disestablish the District of Columbia was again made by Mr. Bacon [actually it was made by John Dawson, of Virginia]. This time his proposal to re-cede to Maryland and Virginia all the territory except the city of Washington. These attempts seem, from the records, to have been abandoned after 1806 for many years. On both these occasions Mr. G. W. P. Custis of Arlington was an active opponent of retrocession.

However, talk on the subject did not cease. It was claimed on the one hand that the constitution of Maryland had been violated by the cession without a vote upon the act having been taken at two successive sessions of the Maryland Legislature. In Virginia some talkers alleged that the prohibition on the Virginia side of the river was a violation of the terms of cession, and made it void. Mr. Bacon and those of his opinion asserted that Congress was authorized to be “the seat of government,” and that, inasmuch as Georgetown, Alexandria, and the other territory outside the city of Washington were not the seat of government, the retention of that territory was unconstitutional.

In 1818 another proposal for the disintegration of the District of Columbia came to the front, and a town meeting in Alexandria was called by the mayor. Dr. E. C. Dick presided and Jacob Hoffman was secretary. At this meeting a protest against retrocession was adopted. It was not, however, until 1834 that a general movement outside of Washington was made for retrocession. It had been proposed in Congress to establish a Legislature for the District of Columbia. The two little cities, Georgetown and Alexandria, feared the overwhelming influence of the continually growing city of Washington, which might deprive them of the home rule which existed in their municipalities. Georgetown this time took the lead, and made a strong appeal to the State of Maryland for help, while Alexandria made an appeal to the Congressional delegation from Virginia.

In the House of Representatives, on the 19th of February [1838], Mr. Wise of Virginia introduced a resolution that the committee on the District of Columbia be instructed to inquire into the expediency of receding, under proper restrictions and reservations, and with the consent of the people this District and the States of Maryland and Virginia, the said District to the said States.

In Georgetown a series of popular movements in favor of a return to Maryland were initiated, and, after some preliminary proceedings, a mass meeting of the voters of Georgetown was called. The meeting was held on the 12th of February at the North Lancasterian school room, and the “Potomac Advocate” states that it was “one of the largest and most respectable ever held within our town.” Mr. John Kuntz occupied the chair and Thomas Turner was the secretary. Mr. S. McKenney introduced a resolution that “without reference to the political advantages to accrue to that portion of the county of Washington which lies west of Rock Creek, including Georgetown, from a retrocession thereof to Maryland, provided that it can be effected on such terms as shall secure from Congress the reimbursement from Congress of the debt created in the improvement of the harbor and the construction of the Chesapeake and Ohio Canal, will, in the opinion of the his meeting, promote the pecuniary interests and general prosperity of the citizens.” The meeting requested the mayor to order a vote of the citizens of the territory affected on the 14th of February, and if such vote was favorable to retrocession to unite with the common council of Georgetown in bringing the subject before the Maryland Legislature.

The Georgetown committee went to Annapolis to seek help from the Legislature of Maryland, and action on the subject was begun in April, just before the time fixed for adjournment. A committee reported a series of resolutions on the subject, the most important being this one:

“Resolved, That the General Assembly of Maryland do assent to the recession of Georgetown and that portion of the county of Washington, in the District of Columbia, lying west of Rock Creek formerly included within the limits of Montgomery County; provided the Congress of the United States do agree to yield its exclusive jurisdiction over the same; and in such event the said territory shall thereupon be held and deemed a portion of the domain of Maryland, and that the citizens thereof be entitled to all the immunities and privileges of citizens of the State, and the corporate powers which may have been granted by the Congress of the United States.”

On that occasion Mr. Cottman, of Somerset, submitted an additional resolution, as follows:

“And whereas the Constitution of the United States has provided that Congress shall have power to exercise exclusive legislation in all cases over such district as may by the cession of particular States and the acceptance of Congress become the seat of the United States; and

“Whereas the territory north of the Potomac, a portion of the domain of Maryland, has been apparently and ostensibly ceded to the United States by an act of the Legislature of Maryland which was not ratified and confirmed by a succeeding Legislature, and this ostensible cession of the domain being such a modification of the Constitution as requires the action of two successive Legislatures in the mode provided by the constitution of Maryland; therefore

“Resolved, That the territory aforesaid was not ceded in conformity with the constitution of this State, and now is, and of right ought to be, part of the territory of Maryland.”

The Legislature of Maryland, however, adjourned too soon for final action on the subject, and the recession of Georgetown never again assumed formidable proportions.

The assistance given by Congress in securing the release of the Holland loan when it was said that the District cities “were sold to the Dutch” quieted for a while the popular unrest at the “want of a vote” that long galled the young men of the District; but the entente cordiale between the District cities was at an end forever when the corporation of Georgetown passed resolutions protesting against Congress giving aid in the construction of the Aqueduct and the Alexandria Canal, which continued to Alexandria the Chesapeake and Ohio Canal. And although Congress gave Alexandria $300,000 for that work, yet the desire to be with Virginia was not allayed, and when a Democratic Congress refused to re-charter the Alexandria banks the moneyed interests fell in with and even led the people, and then began an agitation which finally severed the District which Washington had made. Then, too, the Van Buren Administration was Democratic, or “loco-foco,” as was the Alexandrian term, and the town of Alexandria was intensely Whig. The Harrison banner of 1840 bore on its reverse the picture of the “Sic semper” woman bending over a shackled maiden in tears, and the legend read: “Our Revolutionary fathers intended us to be free. Sons of Virginia, will you see us slaves?”

At first as the retrocession was so vehemently championed by the Whigs, the “loco-focos” opposed it. The partisans of Van Buren were few in town, but very numerous in the county, and during Tyler’s Administration the Democratic leaders began to see that if Alexandria was turned over to Democratic Virginia it would give the Democrats a more extensive influence; and so, when Polk came in, the Congress which completed the annexation of Texas divided the District of Columbia, and Congress passed a law, which President Polk approved, declaring that “all that portion of the District of Columbia ceded to the United States by Virginia, and all right and jurisdiction, be hereby ceded and forever relinquished to the State of Virginia, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside therein.” So by this act of July 9, 1846, the District of Columbia, which came into being February 27, 1801, ceased to exist south of the river Potomac.


This newspaper article was transcribed from a scan of the original newspaper article on Chronicling America. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



Act of Cession from the State of Virginia – December 3, 1789
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In this act, passed December 3rd, 1789, the State of Virginia “forever ceded and relinquished to the Congress and Government of the United States,” a tract of land no larger than 10 miles square to be used for the seat of government of the United States. However, 57 years after the passage of this act, the Legislature of State of Virginia would pass a subsequent act requesting the land back with the assent of Congress and the people of Alexandria.

One constitutional question I have, and the reason why I am posting the legislation below, is, if in the spring of 1846, did the State of Virginia violate Article I, Section 10, Clause 1 of the United States Constitution? This section says it is illegal for States to pass laws impairing the obligation of contracts. Therefore, if the State of Virginia entered into a Contract with the Federal Government with the passage of the act below (and others), was the passage of the 1846 act requesting the land back a form contractual impairment?

Act of Cession from the State of Virginia - December 3, 1789

ACT OF CESSION FROM THE STATE OF VIRGINIA.

AN ACT for the cession of ten miles square, or any lesser quantity of territory within this State, to the United States, in Congress assembled, for the permanent seat of the General Government. [Passed the 3d December. 1789.]

I. Whereas the equal and common benefits resulting from the administration of the General Government will be best diffused, and its operations become more prompt and certain, by establishing such a situation for the seat of the said Government as will be most central and convenient to the citizens of the United States at large ; having regard as well to population, extent of territory, and a free navigation to the Atlantic Ocean, through the Chesapeake Bay, as to the most direct and ready communication with our fellow-citizens on the western frontier; and whereas it appears to this assembly that a situation combining all the considerations and advantages before recited may be had on the banks of the river Potomac, above tidewater, in a country rich and fertile in soil, healthy and salubrious in climate, and abounding in all the necessaries and conveniences of life, where, in a location of ten miles square, if the wisdom of Congress shall so direet, the States of Pennsylvania, Maryland, and Virginia, may participate in such location :

II. Be it therefore enacted by the general assembly, That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of the State, and in any part thereof, as Congress may by law direct, shall be, and the same is hereby forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of the Government of the United States.

III. Provided, That nothing herein contained shall be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States.

IV. And provided also, That the jurisdiction of the laws of this commonwealth over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until Congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article of the Constitution before recited.


SOURCE: Page 651. The Compiled Statutes in Force in the District of Columbia, Including the Acts of the Second Session of the Fiftieth Congress, 1887-’89


Related Retrocession of Alexandria Entries:

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Phillips v. Payne, 92 US 130 – Supreme Court – October Term, 1875
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As I mentioned previously, the New York Times published an article that highlighted how residents of Washington and Alexandria were planning on challenging the constitutionality of the Retrocession of Alexandria. Less than 4 years later they brought the challenge all the way up to the Supreme Court, but as you can read below, their challenge failed.

The error in the plan was the concept of ‘continued sovereignty’, as in, just because the government changes, it does not mean one can choose to not follow the rules of the new government, including taxation. The Supreme Court did not touch on the legality of the Retrocession of Alexandria, but instead merely said that “[Virginia] She does not complain of the retrocession,” and “No murmur of discontent has been heard from them: on the contrary, Congress, by more than one act, has recognized the transfer as a settled and valid fact.”

By saying such, the Supreme Court did not look deeper at the constitutional considerations of Article 1, Section 8, Clause 17 in regards to the retrocession, but only at the merits of the suit itself- the payment of taxes to a sovereign government. I believe, if they would have chosen a different path, one that included the State of Maryland as a plaintiff, the constitutional considerations of the retrocession would have been discussed further. Instead of as Justice Swayne concluded, “The plaintiff in error is estopped from raising the point which he seeks to have decided [the Constitutionality of the Retrocession of Alexandria]. He cannot, under the circumstances, vicariously raise a question, nor force upon the parties to the compact an issue which neither of them desires to make.”


92 U.S. 130 (____)

PHILLIPS
v.
PAYNE.

Supreme Court of United States.

Mr. W. Willoughby and Mr. S. Shellabarger for the plaintiff in error.

Mr. R.T. Daniel, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

This suit was brought to determine the validity of the retrocession by Congress to the State of Virginia of that part of the District of Columbia, as originally constituted, which was ceded by Virginia to the United States. The plaintiff in error was the plaintiff in the court below. The case upon which he relies is thus set forth in his declaration:—

In pursuance of the Constitution of the United States, Virginia, by an act of her legislature of Dec. 3, 1789, ceded to the United States that part of her territory subsequently known as the county of Alexandria. Congress passed an act accepting the cession. Maryland ceded to the United States the county of Washington, and Congress accepted that cession also. The two counties constituted a territory ten miles square, which Congress set apart as the seat of the government of the United States, and organized as the District of Columbia, over which the Constitution of the United States required that Congress should exercise exclusive legislation in all cases whatsoever. Thereafter, on the 9th of July, 1846, Congress, in violation of the Constitution, passed an act purporting to authorize a vote to be taken by the people of Alexandria County to determine whether the county should be retroceded to the State of Virginia, and declaring, that, in case a majority of the votes should be cast in favor of retrocession, the county should be retroceded and for ever relinquished in full and absolute right and jurisdiction. A majority of the votes were cast for retrocession: whereupon, without any further action by Congress, the State of Virginia passed an act declaring that the county was reannexed, and formed a part of the State. Since that time the State has assumed to exercise full jurisdiction and control over the county, and to authorize the election of officers for the county, among whom is one known as the collector for the township of Washington. The defendant was elected such collector, and assumed to exercise the duties of his office. The State has also assumed to enforce the assessment and collection of taxes upon persons and property in the county. The plaintiff resides in the county, and owns a large amount of real estate and other property there. The defendant alleged that an assessment had been made upon this property; that there was payable to him as such collector, upon the assessment, the sum of $165.18; and he demanded payment. In the event of refusal to pay, he would have sold the property pursuant to the law of the State. To prevent the sacrifice which this would have involved, the plaintiff paid the money under protest; notifying the defendant at the time that he regarded the exaction as illegal and unauthorized, upon the ground that the county of Alexandria was not within the jurisdiction of the State of Virginia, but that it was within the District of Columbia. He avers that the act of Congress of 1846, before mentioned, every thing done under it, and the law of Virginia reannexing the county to the State and extending her jurisdiction over it, are contrary to the Constitution of the United States, and illegal and void.

He therefore claims to recover the amount so paid to the collector.

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RETROCESSION OF ALEXANDRIA – The New York Times, August 17, 1873
|| 4/28/2010 || 10:03 pm || 3 Comments Rendered || ||

Does the New York Times issue corrections after 137 years? Because this article has two errors. First, William Winter Payne, of Fauquier, was then a member of Congress from Alabama, not South Carolina. I decided to look in the Congressional Globe myself and find their error. Second, the article uses both Judge Underhill and Judge Underwood, when it should have been only using Judge John Curtiss Underwood (sadly, he died less than 4 months after this article was published.)

I decided to repost this article here because it provides the setting for the Supreme Court case of Phillips vs. Payne. I was not expecting to find an article that essentially provides a road map for how the unconstitutionality of Alexandria’s retrocession was to be legally challenged.


RETROCESSION OF ALEXANDRIA

The New York Times, August 17, 1873

At a recent meeting of the Common Council of Alexandria, Va., a proposition to establish a new hospital being under consideration, Judge Underhill spoke of the renewed effort by citizens of Washington to procure retrocession of Alexandria to the District of Columbia. He then related an interview he had with Gov. Cooke and Chief Justice Cartter, from which he had learned that they had determined on the move. Judge Cartter had pronounced the act of retrocession of 1846 unconstitutional and void, and they would make a test case by getting some citizen of Alexandria to refuse to pay his taxes, and file a bill for an injunction against their collection by the State of Virginia. They preferred that mode to proceeding criminal case by habeas corpus. The Board of Public Works thought it necessary to have both sides of the river, as the Board of Health had concluded the swamps on the Virginia side were the cause of much of the malarious sickness in Washington. The effort will probably be made in the Fall. Judge Underwood also remarked that the change, if made, would very seriously affect him, and necessitate his resignation of the judgeship or removal, and he said he had looked at the Globe of the date of the act of retrocession, and found that Col. Winter Payne, of Fauquier, then a member of Congress from South Carolina Alabama, had opposed it as unconstitutional, and many Democratic statesmen, but no Whigs.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the New York Times archives and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



S280 – A Bill To Repeal an Act Entitled ”An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia” – United States Senate, April 23, 1866
|| 4/6/2010 || 11:01 am || + Render A Comment || ||

Within two years of the end of the Civil War, it was realized that Virginia’s retrocession in 1846 was unconstitutional and Senator Benjamin Wade, a Radical Republican introduced a bill to repeal the act:


Page 1 - S280 - A Bill To Repeal an Act Entitled 'An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia'
Page 2 - S280 - A Bill To Repeal an Act Entitled 'An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia'
Page 3 - S280 - A Bill To Repeal an Act Entitled 'An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia'
Page 4 - S280 - A Bill To Repeal an Act Entitled 'An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia'
[ Source: Library of Congress ]

Bills and Resolutions
Senate
39th Congress, 1st Session:
April 23, 1866

Mr. Wade asked, and by unanimous consent obtained, leave to bring in the following bill; which was read twice, referred to the Committee on the District of Columbia, and ordered to be printed.

A Bill To repeal an act entitled ”An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia,” and for other purposes.

Whereas the Constitution of the United States provides that Congress ”shall exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States;” and whereas by an act of Congress approved July sixteenth, anno Domini seventeen hundred and ninety, ten miles square of territory was accepted from the States of Maryland and Virginia, as the permanent seat of government, constituting what was subsequently known as the District of Columbia, which when so accepted and defined, all jurisdiction over the same was, by the Constitution, forever vested in Congress, whose duty it was then, and forever after, to preserve unviolated and free from all control whatsoever, save that of Congress; and whereas experience derived from the recent rebellion, has demonstrated the wisdom of preserving such ten miles square under the exclusive control of Congress, both for military and civil purposes, and for the defense of the capital; and whereas, by an act of Congress approved July ninth, anno Domini eighteen hundred and forty-six, that portion of said ten miles square lying south of the Potomac was ceded back to the State of Virginia, in violation of the intent and meaning of the Constitution of the United States, and to the great peril of the capital as aforesaid: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act of Congress approved July ninth, anno Domini eighteen hundred and forty-six, retroceding to the State of Virginia that portion of the district ten miles square, as provided by the Constitution, known as the District of Columbia, be, and the same is hereby, henceforth and forever repealed and declared null and void, and that the jurisdiction of Congress, and the laws provided for the District of Columbia be, and the same hereby, put in force, as same as if said act of retrocession had never been passed.

Sec. 2. And be it further enacted, That private and personal property shall not be affected by this act, so far as the rights of parties are concerned; and all public property whereof the United States were possessed at the time of the retrocession of said portion of the District of Columbia to the State of Virginia shall, from and after the passage of this act, be vested in the United States government, any law, act, or conveyance to the contrary notwithstanding, and the government, through its proper officials, is hereby authorized to acquire, by purchase or otherwise, any and all further property, real or personal, in said portion of the District of Columbia, as may be deemed necessary for public use.

Sec. 3. And be it further enacted, That all suits and actions at law, civil or criminal, shall from and after the passage of this act be conducted and determined according to the laws, rules, and regulations enacted and provided by Congress for the District of Columbia, excepting causes wherein final judgment, decree, or sentence shall have been pronounced or passed; in such cases the final satisfaction of such judgments or decrees will be in accordance with the laws in force in the State of Virginia. But all causes wherein final judgment or decree shall not have been passed or pronounced, shall be in future conducted and determined as provided by this act.

Sec. 4. And be it further enacted, That all taxes and revenues assessable and collectible on property, real or personal, in said portion of the District of Columbia south of the Potomac, shall from and after the passage of this act, be rated, collected, and applied according to the existing or future laws of Congress governing the District of Columbia.

Sec. 5. And be it further enacted, That from and after the passage of this act all civil offices in the said portion of the District of Columbia south of the Potomac, in the city of Alexandria and what is known as the county of Alexandria, shall be declared vacant; and the vacancies so created shall be filled by new appointments or elections, to be made and held under the laws, regulations, and qualifications provided by Congress for elections and electors in the District of Columbia.

Sec. 6. And be it further enacted, That this act shall be in force from and after its passage.



ALEXANDRIA AND THE DISTRICT OF COLUMBIA – The Alexandria Gazette, June 9, 1909
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This editorial is the third in a series of editorials published by the Alexandria Gazette in first week of June 1909. As the editors hinted to at the end of the previous editorial, they reprint a previous opinion that was rendered by Senator George Frisbie Hoar of the judiciary committee shortly before his death.

Printed in full, for the first then, as it is the first time now, are the committee’s findings that the matter between Congress and Alexandria County, the former portion of the District of Columbia, have been resolved by political, not judicial means, and there is nothing stopping the negotiations for the reacquisition from taking place. The Hoar opinion was written 7 years prior in 1902 and concluded that the Federal government can purchase those lands back with the consent of the State of Virginia.


Click to view the newspaper clipping

ALEXANDRIA AND THE DISTRICT OF COLUMBIA – The Alexandria Gazette, June 9, 1909

As heretofore stated Mr. Hayes, of California, on May 27 introduced a bill in the House of Representatives to extend the limits of the District of Columbia so as to take in all of Alexandria county, but not Alexandria city or that part of Falls Church which lies within the county. The bill was published in full in the Gazette of June 1. Commenting upon this the Gazette of June 1st suggested that Mr. Hayes should read the report made to the Senate on this subject by the late Senator Hoar. This report reads as follows and has never before been published in full:



Constitutionality of the retrocession of a certain portion of the District of Columbia ceded to the United States by Virginia.
April 11, 1902, — Ordered to be printed.
MR. HOAR, from the committee on the judiciary, submitted the folowing

ADVERSE REPORT.

The committee on the judiciary, to whom was referred the joint resolution (S. R. 50) directing the attorney-general to bring suit to determine the constitutionality of the retrocession of that portion of the original District of Columbia which was ceded to the United States by the state of Virginia, submit the following report:

The territory on the other side of the Potomac river, including the city of Alexandria, which was originally a part of the 10 miles square, was ceded by Virginia for the seat of government. It was retroceded to Virginia by act of Congress in 1846, accepted by Virginia, and thereafter Congress exercised no jurisdiction over it, except so far as it controls the Arlington national cemetery, the experimental farm of the Department of Agriculture, the military school for cavalry, and the signal corps, with the land and building occupied by them.

It seems to the committee that it is not expedient that this act of retrocession should be set aside by Congress, even if Congress have the power so to do, without the consent of Virginia. Virginia accepted the transaction, it being understood that it was at the desire and for the benefit of the national government. She has established in Alexandria the important and intimate relations which every state forms for its own citizens dwelling on her own soil; and the people, on the other hand, we presume, feel the loyal and deep attachment which such a relation excites. Such a tie ought not to be broken at all without the consent of the parties, except in case of some paramount and overwhelming public interest.

As to the suggestion that the retrocession was unconstitutional, it seems to as the answer is that from the nature of the case it is a political question and not a judicial question, and that it has been settled by the political authorities alone competent to decide it. It is like the question, What is the true state government, the true and lawful government of a state?– like the question, What is the true frontier? where any dispute exists as to whether territory belongs to us or so a neighboring foreign country, and many like questions.

These are partly questions of law and partly of fact. The questions of law may be settled by the highest court to whom, in the course of judicial proceedings, they may be taken, unless, and until that court choose to reverse its previous opinions. But the fact must be determined in each case, when it arises, by the jury or other tribunal authorized to find the fact. It would be utterly intolerable that territory should be held in one case to be a part of Virginia, and in another case to be a part of the District of Columbia, according as might be held, in the individual case.

So it seems to the case must be deemed settled by the acquiescence in the act by Virginia and of the United States, as manifested by the conduct of the departments of government for more that half a century. The consequences of holding that this retrocession has been void from the beginning would be very serious.

If it be desirable that Alexandria become a part of the District of Columbia again, the only way to accomplish it will be to open negotiations with Virginia and get her consent (See Luther v. Borden, 7 How., 1.)

The committee, therefore, report adversely, and recommend that the resolution be indefinitely postponed.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Chronicling America newspaper collection and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



STILL AFTER ALEXANDRIA – The Alexandria Gazette, June 5th, 1909
|| 12/24/2009 || 10:25 am || 1 Comment Rendered || ||

This editorial is a follow-up to a previous editorial that included the full text of a bill that Representative Hayes, of California, had introduced in Congress the previous week to expand the size of the District of Columbia. Representative Hayes goes on record in this article saying that his bill is imperfect and that in the next session he would like to also include Alexandria City, which was left out. The editor of the Alexandria Gazette concludes with a hint at what the next editorial will be….


STILL AFTER ALEXANDRIA – The Alexandria Gazette, June 5th, 1909

Representative Hayes, of California, says he will push his bill, recently introduced in the House, for the return to the District of Columbia of the land once part of the District and later ceded to the State of Virginia. The action of the Twenty-third Congress in making the return of this land to Virginia has been criticised as unconstitutional, and President Taft at the dinner given him by the business men of Washington expressed a wish for the enlargement of the District.

Mr. Hayes said yesterday: “I am convinced that the land first ceded by Virginia is still legally a part of the District of Columbia. The constitution plainly states that an area not more than 10 miles square shall be the capital of the United States, under the jurisdiction of Congress. This Virginia land was ceded to the government for the District of Columbia, and there was and is no authority for its transfer back to Virginia. Since my bill was introduced I have become convinced that if the land is reclaimed by the government the town of Alexandria must be included in the transfer. I intend to push my measure at the next session, and I believe that the land will come back to the District. Certainly, no lawyer will contend for a moment that it rightfully belongs to the Dominion State, and I do not see how Congress can act otherwise than to restore the land to the jurisdiction of Congress.”

The president said in his speech that the city of Alexandria should be allowed to remain in Virginia, but members of Congress are of the opinion that if it is unconstitutional for the tract to remain in Virginia it is also unconstitutional for part of of the tract to remain in the State.

Mr. Hayes should read the report on this subject made to the Senate by Senator Hoar shortly before his death.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Chronicling America newspaper collection and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.





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