PLEA FOR RESTORATION OF ALEXANDRIA COUNTY – The Washington Times, April 13, 1902
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Of note, is that this very same article was published verbatim the following week on the same page in the same newspaper with a new title REUNION OF DISTRICT AND ALEXANDRIA.

Mr. H. Phillips Memorializes the District Committee.

MANY BURDENS IMPOSED

Caused by Proximity to District- Problems of Police Protection and Improvement of Public Highways Cited as Reasons for Re-annexation.

Mr. H. Phillips, a resident of Alexandria county, Va., who believes that the retrocession of that county is unconstitutional and that it still forms a part of the District of Columbia, has communicated to Congress his views on the question of restoration.

Mr. Phillips statement is addressed to the House Committee on the District of Columbia, and is as follows:

“In the year 1784, pursuant to paragraph 17, section 8, article 1, of the Federal Constitution, Virginia ceded to the United States a small area on the Potomac River to form part of the permanent seat of the General Government. In 1846 Congress passed an act ceding this land back to Virginia, thus dismembering the established seat of government of ten miles square. The portion returned to Virginia was organized as a separate county, only one-fourteenth of the average size of the counties of the State.

Burdensome Problems

“The problem of local police protection and improvement of public highways in the little county has become difficult and burdensome on account of the disorder and heavy travel incident to proximity to a large city.

“In 1861, the War Department and military forces again took practical possession of the county, building fortifications on every conspicuous eminence within its borders, and at the close of the war retained the Custis estate of eleven hundred acres, later paying for it and establishing a great national cemetery, a large military post, and a station of the Department of Agriculture, within its borders. The United States makes no contribution to the expenses of the local government, notwithstanding its ownership of one-sixteenth of the area and one-seventh of the property valuation of the county.

“The suburbs of cities are peculiarly subject to the presence of unlawful persons who resort to such points for illicit liquor selling, gambling, and other disorderly conduct near public highways. Especially is this observed on the Sabbath day. The residents of Alexandria county as a class are honorable, intelligent, and public spirited. The attorney for the county is active and successful in prosecuting offenders brought to his attention, and the judiciary resolute in sentencing law breakers. The police force of this small county, limited to a few men, receiving inadequate pay, cannot, however, prevent disorderly person entering the county from the city of Washington, or preserve order along the extensive river front. The history of municipal government shows that public order is thus difficult to preserve near boundary lines of a city. Malefactors constantly seek such border for the commission of unlawful acts, or to escape the strong arm of the law; hence cities are usually extended far beyond the limits of closely-built houses.

Sanitary Protection Needed.

“Sanitary protection, equally important to public welfare, requires that Alexandria county should be restored to the District of Columbia. Disease is carried to the limits of cities in deposits of water material, not only contaminating springs and water courses used by unsuspecting persons, but adding by exhalation to the other impurities of city air. Fire protection in suburbs also makes an extension of municipal limits desirable.

“It is also reasonable that cities control the maintenance of suburban parks and driveways, contributing to the health and pleasure of its residents. The circumscribed limits of walls and fortresses observed in the history of feudal towns should be thus brushed aside by the advance of science and civilization. The principles applicable to the extension of cities generally become more important when the seat of government and capital of a nation are concerned.

“So, disregarding the legal status of Alexandria county, there are important and practical reasons why it should be restored to the District of Columbia. It was urged in behalf of ceding part of the District of Columbia back to Virginia in 1846, that the United States had no property or buildings in Alexandria county. Now, we find the United States owns three bridges across the river, and in addition, a large share of the lands, buildings, and other improvements in the county, is the property of the National Government.

“An instance of the necessity of police protection occurred a few years ago. Coxey’s army came to Washington. They were ordered from the city and came over to Alexandria County and camped, and only moved when, upon application to the Governor, a company of troops bundled the army, bag and baggage, across the river. The executive officers of the Government, the judiciary, and members of Congress pass over this unpoliced area to and from Arlington National Cemetery. If injury comes to any official of the Government on the county highways from some criminal or insane person the Government is responsible for neglecting to maintain a jurisdiction imposed by the Constitution.

The Legal Question.

“It would seem, however, to be a proper subject for judicial inquiry, whether under the Federal Constitution, one or two of the three principal branches of Government have power to alienate a part of the established seat of government. The War Department has built on the county highways water mains, telegraph and telephone lines, and pumping station on land obtained for a bridge approaches in Alexandria county, without authority of Virginia, and without permission of the owners of the fee of the public highways, so if Alexandria county is lawfully part of Virginia, the United States is a trespasser without process of law or just compensation; but if the Supreme Court declares Alexandria county part of the District of Columbia, the Commissioners of the District of Columbia may at once provide for its police protection, and the Government improvements are within the legislative control of Congress.

“Congress has prohibited fishing at certain times, and in various methods in the waters of the Potomac, along the District. If Alexandria county is part of Virginia, such legislation is wholly unwarranted, and notwithstanding such legislation, Virginians have full riparian rights in the waters of the Potomac opposite Washington, subject only to Virginia laws.

“Jackson City has long been a menace to the moral of Washington, but if the establishment of the boundary of Maryland and Virginia has any reasonable interpretation, Jackson City is wholly in the District, and the Commissioners neglect their duties if they do not police Alexandria Island, and abate a stain on Washington city.

“Considering the restoration of Alexandria county to the District, in respect to the wishes of President Washington, it is most worthy of the attention of Congress. To the efforts of the first and most distinguished President, the location, plan, and success of the Capital may be justly ascribed. It will be a deserved tribute and honor to his memory to restore the original and proper limits surveyed and established under his person direction.

“Regarding the fitness of the proposed resolution, the Supreme Court has decided that the question is cognizable only in a case between the United States and the State of Virginia, and cannot be adjudicated between other parties. If the court decides Congress did not exceed its constitutional powers in ceding part of the seat of government to Virginia the controversy ends. If the court decides, however, Congress exceeded its powers, the jurisdiction of Congress, the courts, and Commissioners of the District will thenceforth extend over the entire ten miles square.

“The people of Alexandria county generally favor a restoration of the original District. Virginia does not wish to lose more territory. The United States paid $20,000,000 to Spain for a lot of foreign islands and proposes to $5,000,000 to Denmark for three little tropical islets, so it may not be unjust to contribute $1,000,000 toward the debt of the mother of States if Alexandria county is restored to the National Government.

“The Capital, the seat of general government, is important, however, not only to the in Washington, and in Virginia, but its preservation, its size, and location and its welfare are rights of and affect the people of the entire nation. The interests of the people, from the Atlantic to the Pacific, and from Canada to the Gulf and the detached territory, should be fully and justly considered in the action on the proposed resolution.

“It may urged, Why disturb a condition of dismemberment of the seat of government established for over fifty years? In reply, it may be justly stated there is no progress of civilization, or improvement of any description, that does not disturb existing conditions within lawful limits. If the object of the resolution is desirable for the Government and for the citizens directly and indirectly interested, if it is entirely within the powers and limitations of the Federal Constitution, and if the resolution is appropriate to the subject matter, it should be adopted.”

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.

Does Virginia Own Alexandria County? – The Washington Herald, January 18, 1910
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I found this article absolutely fascinating. I’ve blogged about the two acts of Congress that are referenced throughout this article [H.R. 259 – An act to retrocede the county of Alexandria, in the District of Columbia, to the State of Virginia & An Act for establishing the Temporary and Permanent seat of the Government of the United States], but until today I had not thoroughly read a legal opinion on the topic of Virginia’s retrocession of Alexandria County (now present-day Arlington County). My original contention was that the Act of 1846 was illegal because the text of the Act specified that retrocession was possible only with the approval of both the city *and* the county of Alexandria, and only the city voted in favor retrocession. The argument presented in this article below speaks to the larger issue of how the “permanent” seat of government was created out of a legal covenant that involved four parties: the Federal Government, Virginia, Maryland, and the original 19 property owners of the District. A very compelling case is made that through the passage of the Act of 1846 the original covenant was unconstitutionally broken. 99 years later, I thoroughly agree with the logic outlined in the article below and would like to have the District of Columbia return to its original size. While I don’t see it happening any time soon, history shows that change is constant.

Map of the portion of the District of Columbia ceded back to Virginia

The Washington Herald, January 18th, 1910

DOES VIRGINIA OWN ALEXANDRIA COUNTY?

Hon. Harris Taylor, in Elaborate Opinion, Holds the Retrocession Was Clearly Illegal and Unconstitutional.

Was the act of July 9, 1846, under which the County of Alexandria, then in the District of Columbia, was re-ceded to the State of Virginia unconstitutional?

Hon. Hannis Taylor, former Minister to Spain, and a constitutional lawyer of distinction, has prepared an elaborae opinon on this subject, which was presented to the Senate yesterday, in which he holds that the retrocession was clearly illegal and unconstitutional.

“If retrocession to Virginia is to stand,” he says, “then the land underlying the Capitol, the White House, and the Treasury belongs either to Maryland or the local proprietors whom it was granted. The nation can only be protected against that result by a judgement of the Supreme Court of the United States declaring the act of retrocession of 1846 to be null and void.”

Complete Answer Found.

What is the remedy?
“The complete answer,” he says, “is to be found in the opinion of the Supreme Court in the case of The United States vs. Texas (143 U.S.,621-649), in which it was held that the Supreme Court can, under the Constitution, take cognizance of an original suit brought by the United States against a State to determine the boundary between one of the Territories and such State; that the Supreme Court has jurisdiction to determine a disputed question of boundary between the United States and a State; that a suit in equity begun in the Supreme Court is appropriate for determining a boundary between the United States and one of the States.”

He quotes the opinion rendered in this case, and says it solves every problem that can possibly arise in an original suit between the United States and Virginia as to the boundaries of the District of Columbia.

Act of 1846.

His opinion as to the unconstitutionality of the retrocession is based upon the contention that the act of 1846 broke a quadrilateral contract entered into on the one hand by the United States and on the other by Virginia, Maryland, and the nineteen local property-owners in Washington.

The United States, through the act of Congress of July 10, 1790, passed under the constitutional mandate, agreed that “the District so defined, limited, and located, shall be deemed the District accepted by this act, for the permanent seat of the government of the United States.”

Each of the three grantors, in consideration of that stipulation, made for the benefit of each, through which alone title to the whole could be made perfect, entered into the quadrilateral contract in question.

“It is elementary in the law of contracts,” he says, “that when two or more instruments are recorded at the same time or at different times which relate to the same subject matter, and one refers to the other, either tacitly or expressly, they will be taken together and construed as one instrument.

Maryland’s Right.

“Maryland,” he says, “has a perfect right to claim of the United States, by reason of the recision of the original quadrilateral agreement, the return of every foot of land ceded by her and now embraced within the present limits of the District.

“That right Maryland can enforce in an original suit against the United States in the Supreme Court under the authority laid down in the case of the United States vs. Texas.

“That great case,” he says, “refuted most emphatically the contention made by Senator Hoar in the Senate on April 11, 1902, that retrocession was a political and not a judicial question, and was settled by the political authorities, alone competent to decide it.

“The Supreme Court in the case in question decided that ‘it cannot with propriety be said that a question of boundary between a Territory of the United States and one of the States of the Union is of a political nature and non susceptible of judicial determination by a court having jurisdiction of such a controversy.

Constitutional Mandate.

“The constitutional mandate that requires the President to ‘take care that the laws be faithfully executed’ compels him to ascertain and determine the limits of territory over which they are to be enforced.”

And in conclusion he says:
In determining all question all questions of boundary, whether foreign or domestic, the initiative in this country is vested in the Executive acting alone. While he may advise with Congress as to the steps he may take in ascertaining boundaries, while executing the laws within the same, the President cannot surrender his exclusive power to ascertain what they are.

As a practical illustration, if in this matter the President believes that Virginia is in lawful possession of that portion of the District described in the act of 1846, it is his constitutional duty to “take care that the laws be faithfully executed” in that area, regardless of any contrary opinion the legislative department of the government might entertain on the subject. He could hold no other view without abdicating the independence of the executive power in the execution of the laws. It is, however, in my humble judgment, a case in which there should be friendly consultation between the executive and legislative departments, because in the event of a recovery in the Supreme Court Congress would no doubt be called upon to pass such a bill of indemnity as would relieve Virginia of any accountability for revenues derived from the area in question during her de facto occupation.

Goes in the Record.

Senator Carter, in presenting the elaborate brief written at his request by Mr. Taylor, asked and was granted unanimous consent to have it printed in the Record, and also as a Senate document. He said:

The subject is of absorbing interest to the people of the District and will surely challenge the attention of the country with constantly increasing force as the growth of the Federal city and the expanding needs of the government demonstrate more fully the wisdom of President Washington and his co-laborers in fixing the District lines as originally marked.

To the United States government the subject is of
Continued on Page 3, Column 4

DOES VIRGINIA OWN ALEXANDRIA COUNTY

Continued from Page One.

grave concern, for it involves in a technical sense title to the ground upon which this Capitol, the White House, and many other important public buildings stand. If the recession to Virginia stands in law it would seem possible that the Federal government retains jurisdiction over the portion north of the Potomac in derogation of the rights and at the sufferance of the State of Maryland.

Fever-breeding Marsh.

When artistic taste and solicitude for sanitary conditions combined to inspire the movement to reclaim the Potomac Flats, the progress of the work soon revealed the fact that proper treatment of the narrow river and adjacent marshes would always be limited and unsatisfactory while confined to the northern bank alone. A fever-breeding marsh within 7,000 or 8,000 feet of the White House cannot be regarded with indifference, nor can any one fail to observe that the improvement on the north sets forth the unsightliness of the south bank of the river in bold relief. In short, each year more amply justifies the wisdom of Washington and his commission in embracing both sides of the river within the limits of the Federal District.

The Capitol, the White House, and all the public buildings were located near the center in the beginning, but the act of retrocession moved the southern line of the District to within a short distance of the White House grounds. This was not intended by Washington, under whose masterful direction the constitutional design regarding a seat for the Federal government was executed.

Defeat of Intention.

“The act receding two-fifths of the District to Virginia so obviously defeats the intention of the framers of the Constitution in this behalf and so ruthlessly disregards the rights of other parties that I have for years regarded it as null and void on general principles; not withstanding the interesting and important nature of the question, I have not found time to investigate the law and the historical facts bearing upon it. Last year, however, I had the good fortune to mention the matter to Mr. Harris Taylor, known to the bar of the country as one of our leading constitutional lawyers, and the gentleman volunteered to examine the question and to write me his view upon it.

Mr. Taylor’s letter sets forth the constitutional provision in question and all legislation, State and national, in relation to the subject, together with a review of all executive action and contract obligations in pursuance thereof. In fact, the letter is a brief of such rare clearness and ability that I believe it should be made permanently available for reference, and so believing, I renew my request and ask that when printed the commincation be referred to the Committee on the District of Columbia for consideration.

An Exhaustive Opinion.

Mr. Taylor’s opinion, buttressed by historical references and legal citations, is exhaustive and comprehensive. He says, in beginning:

The contemporaneous evidence puts the fact beyond all question that the final definition of a district ten miles square as the seat of our Federal government was in a special sense the personal work of President Washington, whose task involved the acquisition of the title to the tract from three sources- the State of Virginia, the State of Maryland, and the nineteen local proprietors who owned that part at the heart of the present city which underlies the Capitol, the White House, and the Treasury. Washington’s task was to induce the three parties who held the title to cede to the Federal government, without any direct pecuniary consideration, the entire area under a quadrilateral contract in which that government was the grantee and beneficiary, and Virginia, Maryland, and nineteen local proprietors the grantors. The real consideration moving to such grantors was the incidental benefits to accrue to them from their joint cession, which, in the language of the act of July 16, 1790, “is hereby accepted for the permanent seat of the government of The United States.” That covenant represented the only consideration moving directly from the Federal government, while the three grantors were bound to each other by the mutual considerations moving from the one to the other under interdependent grants.

Maryland, the last to grant, expressed the idea of mutual benefits to be derived from a common enterprise when her legislature declared that “it appears to this general assembly highly just and expedient that all the lands within the said city should contribute, in due proportion, in the mean which have already greatly enhanced the value of the whole.” Under that quadrilateral contract, supported by the foregoing considerations, the Federal government entered into possession with a perfect title, after the final cession made by Maryland December 19, 1791.

Government in Control.

No one, perhaps, will deny that after the title to the entire area had thus passed from the three grantors into the corporate person of the nation neither the State of Virginia nor the State of Maryland could have, either in law or in equity, any claim to the common heritage superior to that of any other State. Under such considerations the Federal government remained in peaceful possession of the entire area ten miles square, and governed the same under the Constitution for a period of fifty-five years. During that time the original boundaries as designed by Washington were marked by massive stone monuments, while still abide unimpaired.

By the act of retrocession of July 9, 1846, the District was dismembered by a conveyance to Virginia of nearly one-half of the entire area for no pecuniary or property consideration whatever. What was the real motive of the retrocession it is at this time difficult to ascertain.

From a legal standpoint, the fact that the portion reconveyed to Virginia had originally been contributed by her is of no significance whatever. Therefore, before argument begins, the mind wonders upon what constitutional principle such retrocession could have been made. Two distinct parts of the Constitution are involved. First, that part of section 8, Article 1, which provides that Congress shall have power “to exercise exclusive legislation in all cases whatever, 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;” second, that part of section 10, article 1, which provides that “no State shall pass any bill of attainder, ex post facto law or law impairing the obligation of contracts.”

During the memorable Senate debate led by Senator Haywood, of North Carolina, who, as chairmen of the District Committee, bitterly assailed the constitutionality of the act of retrocession, the meaning and effect of section 8, Article 1, was fully explored.

I cannot doubt the soundness of the conclusion then reached by many leading statesmen of that day to the effect that, considered in reference to that part of the Constitution alone, the act of retrocession is null and void. What I cannot understand is the fact that any debate, however hastily conducted, the deeper and more obvious argument based on the contract clause of the Constitution (Article 1, section 10), should have been entirely overlooked. And yet the record shows that such was the fact.

It never occurred to any one in 1846, or since that time, to look to the sources of the title in the quadrilateral contract upon which the ownership of the area ten miles square really depends. What is said herein as to that branch of the subject is my personal contribution to the controversy.

Acquirement of Site.

He goes into history to show how the site of the National Capital was discussed and finally acquired, and says:

After prolonged discussion the act of July 16, 1790, was passed, and the site of the District finally located, partly in Prince George and Montgomery counties, in the State of Maryland, and partly in Fairfax County, in the State of Virginia, by proclamation of President George Washington, March 30, 1971, within the following bounds:

“Beginning at Jones Point, being the upper cape of Hunting Creek, in Virginia, and at an angle in the outset of 45 degrees west of the north, and running in a direct line ten miles for the first line; then beginning again at the same Jones Point and running another direct line at a right angle with the ffirst across the Potomac ten miles.”

From the diagram it appears that the “Portion derived from and receded to Virginia” constitutes nearly one-half of the territory of the District as originally defined in the proclamation of March 30, 1791. If the act of July 9, 1846 (9 Stats. 35), entitled “An act to retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia,” is unconstitutional and void, the laws of the United States should now be executed by the President thourghout the “Portion derived from and receded to Virginia.”

Continuing, he says:
After the power to elect the seat of government had been once exercised by Congress, after the cession had been made for that purpose by “particular States,” after the area so ceded had been accepted by Congress under the act of July 16, 1790, declaring “the same is hereby accepted for the permanent seat of government of the United States,” the power of Congress over the subject matter was exhausted. Or, if it was not exhausted, could not again be exercised, because no power remained to transfer the District, as originally created and accepted, of any portion of it to any State. In other words, after a district of ten miles square had once been established and accepted as a permanent seat of government, Congress possessed no power to acquire another territory for another seat of government, without violating the constitutional limitation which confined it to the ten miles square. The Congress, an agent of limited authority, was expressly authorized to receive cessions from States of a limited amount of territory to be held as a permanent seat of government; but it was not authorized, expressly or implicitly, to give any part of such cessions away to any one. Such was the constitutional difficulty which the Hon. R. M. T. Hunter attempted to overcome when the bill in question was up for debate in the House of Representatives May 8, 1846.

Section 8 of Article 1 of the Constitution when taken as a whole, provides that “the Congress shall have power * * * to 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 the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful things.” The delegation of power thus made Congress to acquire a seat of government for the United States, through formal acceptance of cessions to the be made by particular States is a distinct subject matter, entirely separate and apart from the succeeding delegation of power to govern “all places purchased by the consent of the legislature of the State in which the same shall be.” Did the grant of an express power formally to accept cessions from particular States, which were to constitute and “become the seat of government of the United States,” carry with it, as a necessary implication, the right to use the means necessary for the execution of the power? In other words, did the implied power to use such necessary means flow from the express to accomplish the end? In construing that clause which provides that Congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” it was held at an early day that the clause in question “confers on Congress the choice of means and does not confine it to what is indispensably necessary.”

Constitutional Mandate.

The express mandate was given by the Constitution to Congress to acquire a seat of government by cessions from particular States, and in no other manner. Congress was powerless to force any State to make a cession; it could not go beyond the limits of the States. It could only persuade; it could not command. Congress did not offer to the ceding States any money consideration whatever for their cessions. The means, and the only means, Congress saw fit to employ to accomplish a vitally important end was the promise, made in the of July 16th, 1790, that the seat of government to be located on the cessions should be “permanent.”

The act expressly declared that “the district so defined, limited, and located shall be deemed the district accepted by this act for the permanent seat of government of the United States.” When Mr. Madison moved in the House of Representatives to strike out the word “permanent” from the act he was voted down, and thus we have a legislative interpretation, practically contemporaneous, to the effect that the Constitution intended to confer upon Congress the power make the seat of government permanent. Contemporary interpretation of the Constitution, practiced and acquiesced in for years, conclusively fixes its construction.

Some years go, when a movement was on foot to remove the Capital to the Valley of the Mississippi, the effect of the action of Congress under section 8, Article 1, was fully discussed. I am informed that it was then universally admitted that by the selection of the present seat of government the power of Congress, under the section in question, had been exhausted.

Virginia made her grant, which was the first grant, December 3 1789. The nineteen local proprietors perfected their grants on or about the 29th of June, 1791. Maryland did not make grant until December 19, 1791. In that grant, embodied in a very elaborate act of thirteen sections, Maryland put the fact beyond all question that the prior grants made by Virginia and the nineteen proprietors were conditions precedent to her grant.

Quotes from Opinions.

He quotes from many opinions rendered by the Supreme Court of the United States to show that a grant is a contract, and this quadrilateral contract entered into by the United States on the one hand and Virginia, Maryland, and the nineteen local proprietors on the other, was binding in its operation and effect, and could not be modified without abrogating the contract as a whole.

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