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THE STATE OF COLUMBIA by Frank Sprigg Perry – Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27
|| 7/15/2010 || 2:45 pm || + Render A Comment || ||

This article was originally published in the Georgetown Law Journal and outlines the case that the District of Columbia can be made into a state without a constitutional amendment. I find it interesting that nearly 60 years later residents of the District of Columbia chose to add “New” to the name of their future state.

Map originally published in the Washington Herald on 1/18/1910

THE STATE OF COLUMBIA

Can A State Be Erected Out Of The District Of Columbia Without A Constitutional Amendment?

Frank Sprigg Perry
Associate Justice of Constitutional Laws
Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27

In the great tide of Statehood which has flowed westward over continental United States there has been left on the Atlantic seaboard a small area which may be called a “back water” of American political life. From Canada to Mexico and from the Atlantic Ocean to the Pacific, all are sovereign States with the single exception of the District of Columbia. The City of Washington bears the proud title of the Capital of the greatest Democracy on earth. And yet how hollow is the sound of political liberty to the disfranchised inhabitants living in the very shadow of the dome of the Capitol!

This article will discuss the power of Congress without a Constitutional Amendment to erect a State out of the District of Colombia—THE STATE OF COLUMBIA.

The permanent seat of the Federal Government was authorized by Article I, Section 8, Clause 17 of the Constitution;

“Congress shall have power:

17. 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, dock-yards, and other needful buildings.”

The land for this purpose was ceded by the States of Maryland and Virginia and the District of Columbia became vested in the United States for this purpose in December, 1800. The land ceded by the State of Virginia comprised the county of Alexandria and was retroceded to that State by an Act of Congress of July 9, 1846. (9 Stats. 35, 1000) The political organization of the District of Columbia embraces the City of Washington and covers at the present time the land ceded by the State of Maryland.

The people of the District of Columbia are totally disfranchised. The government is in the hands of Congress which acts as a national as well as a local legislature. A Board of Commissioners appointed by the President is the executive head. The people have no representative or delegate in the Senate or House of Representatives, nor can they vote for the President or Vice-President of the United States, nor have they a voice or vote in the selection of their Board of Commissioners.

The District of Columbia has a population of 437,571 by the census of 1920, a number in excess of each of the seven States of Vermont, Idaho, New Mexico, Wyoming, Arizona, Delaware, and Nevada, and it possesses all of the other qualifications of Statehood. It is conceded that a Constitutional Amendment could give Statehood or any modified form of government to the District. On the other hand, it has been questioned whether Congress can by a legislative act and without such amendment create the State of Columbia, even with the consent of the State of Maryland. An amendment to the Constitution would require a two-thirds vote of both houses of Congress and a subsequent ratification by the legislatures of three-fourths of the States. An act of Congress creating a State government would require a majority vote of both Houses of Congress and the signature of the President.

REASON FOR EXCLUSIVE AUTHORITY

There were several reasons which induced the framers of the Constitution to provide for the power in Congress to exercise exclusive legislation over the seat of the Federal Government. During the Revolutionary period the Federal authority was feeble and, as there was no standing army, the Continental Congress had been forced to depend for protection upon the militia of certain of the States. On June 21, 1783, some armed and mutinous soldiers appeared before Congress in Philadelphia, Pennsylvania, and insultingly demanded their overdue pay. The authorities of the state were appealed to but they made no sufficient attempt to afford protection. Congress moved its seat to Princeton, New Jersey, a few days after this incident occurred. In addition to the necessity for protection, the “Federalist,” No. 38, also urged in support of this clause, that the establishment of this federal district would free Congress from any imputation of awe or undue influence on the part of the State authorities. (Fort Leavenworth Railroad v. Lowe, 114 U.S. 529)

Needless to say, neither of these reasons has any force at the present time. The Federal government has grown sufficiently strong to protect its property wherever located. There can be no imputation of awe or undue influence on the part of a State today, as the United States through the concentration of federal powers in Congress and in the Executive branches of the government has reached a position of almost supreme authority. The transfer of jurisdiction to the State of Columbia would not prevent the Federal Government from protecting its property, nor could the State of Columbia of such limited area exercise a predominant influence over the affairs of the Nation by reason of its locality.

In Revolutionary days the danger was that the Federal authority would be too weak to coordinate and control the necessary functions of national life. The danger today is that this Federal authority has become so powerful that it threatens to smother the separate existence of the several States. In Story’s Constitutional Law, Section 1220, reference is made to a criticism urged in 1803 against the exclusive control by Congress over the District of Columbia as tending to foster an oligarchy and diffuse important changes through our democratic government. The growth of the Federal authority may be attributed in no small degree to its separate and independent existence in the District of Columbia. The creation of the State of Columbia would check further Federal growth along these lines and would add another Commonwealth to jealously guard State life.

POWER TO CREATE NEW STATES

The admission of new states into the Union is provided by Article IV, Section 3, Clause 1, of the Constitution:

“l. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress.”

No limitations are placed upon the powers of Congress to admit new States except as provided in this clause. No other clause of the Constitution limits those powers. Nowhere is it stated that Congress can admit a new State only after it has fulfilled certain requirements. Nowhere is it stated that Congress can admit only States to be carved out of the then existing “Northwest Territory.” New States can be carved out of any territory or other property over which the United States exercises jurisdiction or control. An independent nation can be admitted in the Union as a new State by an Act of Congress alone, as was done in the case of Texas. (Acts of March 1, and December 29, 1845, 5 Stats. 797, 9 Stats. 108.)

There is no clause in the Constitution which expressly authorizes Congress to erect a State out of the land upon which the Federal city is located. There is, however, no clause which prohibits Congress from erecting the State of Columbia out of this area.

It may be considered that the grant of jurisdiction over the District is so absolute and unconditional as to empower Congress to erect out of the District any form of government, even a State government. The insertion of qualifying words in this sweeping clause would destroy the power of exclusive legislation.

It has been held by some that Congress is invested with a peculiar and high authority over the District and that this power is inalienable. This argument was unsuccessfully used before Congress in opposition to the retrocession of Alexandria County to the State of Virginia. If this authority is inalienable, no State can be erected out of the District without an amendment to the Constitution. If, however, Congress exercises political powers over the District similar to those which it exercises over the territory or other property of the United States, then a legislative act can create the State of Columbia.

THE CONSTRUCTION OF THE PARTIES

The construction which the parties place upon a contract by their acts and deeds at the time that they entered into it, is always considered of vital force in determining the meaning of the contract. The territory of the District was ceded to the United States by the States of Maryland and Virginia in accordance with the terms of the Constitution and contemporaneously with its adoption.

The State of Maryland under date of December 23, 1788, offered to cede territory for the seat of the Federal government. In the act of the general assembly of that State of December 19, 1791, ratifying the cession and fixing the boundaries of the ceded area, it was provided in clause 2:

“That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the Congress and Government of the United States, and 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 Government of the United States.”

The State of Virginia on December 3, 1789, in the act of its general assembly ceding this territory to the United States enacted:

“That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of this State, and in any part thereof as Congress may by law direct, shall be, and the same is, 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.”

The territory so conveyed was accepted by the United States in the spirit in which it was ceded. (Act of Congress, July 16, 1790, I Stats. 130.) No limitations were attached to the cession, certainly so long as it remained the permanent seat of the Federal Government. These States severally yielded all the political jurisdiction they possessed over this territory to the United States and the United States accepted this unconditional grant of sovereignty without qualification. One of the political powers so yielded and accepted was the right to erect a separate State out of this area.

The representatives of both the States of Maryland and Virginia had been most active in framing the Constitution!and these several grants show the interpretation all parties placed Clause 17, Section 8, Article 1. So far, as the original contemporaneous interpretation of this clause by the parties themselves affords a guide, there is no prohibition upon Congress to erect a State out of this area— particularly if the consent of the State of Maryland be secured.

COMPARISON OF CLAUSES

Comparison has sometimes been made between the clause conferring power on Congress of exclusive legislation over the District, and the clause giving Congress the power to govern the territory and other property of the United States. This latter clause is Article IV, Section 3, Clause 2:

“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

The power of Congress to erect a new State out of such territory is unquestioned. It has been argued that if these two clauses were intended to convey similar powers, they would have been framed in similar terms. This argument loses sight of the conditions under which each clause was inserted in the Constitution.

At the time of the adoption of the Constitution Congress had received by cession from all but two of the original thirteen States the unsettled lands which lay beyond their territorial limits. This was termed the “Northwest Territory” and Congress exercised the absolute right to and the exclusive legislative authority over the territory. Hence there was no need to insert in the Constitution a clause conferring such exclusive authority over the territory, as Congress was at the time actually exercising this exclusive authority. In fact the Ordinance for the Government of the Northwest Territory was passed by the Continental Congress in 1787 prior to the adoption of the Constitution. This celebrated ordinance is regarded, after the Declaration of Independence, as the most important act of the Continental Congress and furnished for a long period the model after which other territories were organized under the Constitution. The clause in the Constitution dealing with the territory of the United States simply confirmed in Congress the power “to dispose of and make all needful rules and regulations” respecting this and other territory.

In the case of the territory to be occupied as the seat of the Federal Government, just as in the case of the forts, magazines, arsenals and dock yards, it was necessary for the Constitution to go further than in the case of lands actually under the exclusive authority of Congress. The seat of the Federal Government was to be formed out of land limited to 10 miles square to be ceded in the future by the States and which at the time was actually a part of those States and under their exclusive authority. It was necessary to provide that this exclusive authority should be taken out of the States ceding such lands and that it should become vested in the United States. A like necessity existed with reference to the land upon which should be erected forts, magazines, arsenals, and dock yards. The sweeping provisions of Art. I, Sec. 8, Cl. 17, were adopted for these purposes.

In each of these two clauses apt and appropriate words were used to carry into effect the intention of the framers of the Constitution. In the one case it was deemed proper to confirm in Congress the right to make needful rules and regulations over territory and other property owned by Congress. In the case of the district for the seat of the Federal Government, it was necessary to provide for exclusive legislative authority over land which would be ceded by certain States and which had, up to that time, been exclusively under State jurisdiction. In each case the effect is the same and Congress exercises exclusive jurisdiction over all such areas.

NO DELEGATION OF AUTHORITY

The case of Stoutenburgh v. Hennick; (1888) 129 U. S. 141, is sometimes cited as an authority which would prevent the delegation of legislative authority over the District by Congress. The erection of the State of Columbia would involve a surrender of jurisdiction and would not be a delegation of legislative authority. Moreover an examination of the opinion shows that the court went no further than to hold that Congress could not delegate the power to regulate interstate commerce of the Legislative Assembly of the District (10 Fed. Stats. Ann. 2d. ed. 469.)

Even if this transfer of jurisdiction to the State of Columbia could be considered a delegation of authority, the United States Supreme Court in 1878, in Welch v. Cook, 97 U. S., 542, decided that Congress could invest the District Legislature with that power. This case was decided only ten years before the case of Stoutenberg v. Hennick and was not overruled in this later case. The court said:

“It is not open to reasonable doubt that Congress had power to invest and did invest, the District (of Columbia) government with legislative authority, or that the act of the legislative assembly of June 26, 1873, was within that authority.”

JURISDICTION OVER FORTS

The clause empowering Congress to exercise exclusive legislative authority over the seat of the Federal Government, also confers a like authority over forts, magazines, arsenals, dock-yards and other needful buildings. The jurisdiction which the United States must exercise over its military and naval reservations is of necessity an exclusive one. The fact that the same clause confers a like authority in Congress over the District is strong evidence that no limitation upon this power was intended.

Where a State cedes certain land to the United States and reserves a reversionary interest in the property in case it is not used as a fort, the exclusive authority of the United States ceases when the property is leased for other purposes. The cession of such territory has been held to be of necessity temporary and to be exercised only so long as the place continues to be used for public purposes. When it ceases to be used the jurisdiction reverts to the State. The right reserved by a State to tax certain property in the reservation or to serve civil or criminal process has not been considered in violation of the exclusive jurisdiction of Congress.

These illustrations make it clear that this power of “exclusive legislation” is not of such a peculiar character nor of such high authority as to create separate and independent political areas forever under the jurisdiction of the Federal government. Territory or other property acquired by the United States, whether by conquest, purchase, or by cession of the legislature of a State, is subject to the exclusive legislative authority of Congress. This exclusive legislative authority can be surrendered and the property returned to the state which ceded it, or a new State can be erected out of such territory. The creation of a new State is subject to this limitation, that if erected out of land within the jurisdiction of any other State, it must be with the consent of the legislature of that State.

Story Constitution Law, Sec. 1127; Palmer v. Barrett, 162 U. S. 399; Fort Leavenworth Railroad Company, v. Lowe, 114 U. S. 525; 10 Federal Statutes, Ann. (ad. ed.) 841 – 845.

TERRITORIAL AUTHORITY

The power granted Congress to “exercise exclusive legislation in all cases whatsoever” over the District, does not confer any greater political authority than Congress can exercise over “the territory or other property belonging to the United States” or over places purchased with the consent of the State legislatures for the erection of forts, magazines, arsenals and dock-yards. In each case there exists under the Constitution that jurisdiction, absolute, exclusive, unqualified, which is the sovereign authority to make, decide on and execute laws. (*1) Wedding v. Meyler, (192 U. S. 573).

There is no express provision of the Constitution which authorizes Congress to enlarge the national domain or acquire new territory by annexation, cession, conquest, or in any other manner. This power, has, however, always been considered as one of the attributes of sovereignty and as such has been continuously exercised by Congress. As an inevitable consequence of the right to acquire territory, there follows the power to govern the territory. (*2) Rassmussen v. U.S. (197 U.S. 516). The power to pass laws for the government so acquired has sometimes been asserted on the strength of Article IV, Section 3, Clause 2, (supra.) On whatever ground this authority to govern rests, there can be no doubt of its existence and of the fact that under it Congress has the right of exclusive legislation over such territory and can dispose of and make all needful rules and regulations respecting it. This sovereign right of exclusive legislation is similar to that exercised by Congress over the District.

As has been said, if the title to property be absolute, the mode of its acquisition is unimportant. (*3.) Petition to Congress from Committee from town of Alexandria, Va., accompanying House Report 325, 29th Congress, 1st. Session. Whether it be by gift, purchase, conquest, or cession from a State, Congress possesses but a complete title to the area.

It might have been argued that because the Constitution authorized Congress to make “all needful rules and regulations” respecting the territory of the United States, Congress could never divest itself of that power. In other words, that Congress could never carve States out of such territory because by so doing it would surrender the power to make the “needful rules and regulations.” It is a sufficient answer to say that the Constitution has not been so construed. The admission of thirty-four States in the Union from such territory is ample proof of this fact.

The fact that the Constitution expressly confers upon Congress powers of exclusive legislation over the District does not thereby carry with it the implication that all other powers are denied, if there are any such other powers. A striking example of this rule of construction of the Constitution is found in the Legal Tender Cases, 12 Wall. 457. In this case the constitutionality of an act of Congress making paper money legal tender for the payment of debts was attacked because there was no express authority for such law.

It was contended that the clause of the Constitution which conferred upon Congress power “to coin money, regulates the value thereof and of foreign coin,” contained an implication that nothing but that which is the subject of coinage, namely, precious metals, could ever be declared by law to be money or legal tender. This argument was specious and persuasive. The fallacy of the contention, as the court observed, was that the Constitution has never been construed that way. The court held that the enumeration of certain governmental powers, did not thereby exclude the existence of other governmental powers not enumerated. The Court said:,

“XXXX[544]. It is not claimed that any express prohibition exists, but it is insisted that the spirit of the Constitution was violated by the enactment. Here those who assert the unconstitutionality of the acts mainly rest their argument. They claim that the clause which conferred upon Congress power “to coin money; regulate the value thereof, and of foreign coin,” contains an implication that nothing but that which is the subject of coinage, nothing but the precious metals can ever be declared by law to be money, or to have the uses of money. If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed.”

“XXXX[546]. In most cases, if not in all, when it was intended that governmental powers, commonly acknowledged as such, should cease to exist, both in the States and in the Federal Government, it was expressly denied to both, as well to the United States as to the individual states. And generally when one of such powers was expressly denied to the States only, it was for the purpose of rendering the Federal power more complete and exclusive.”

In like manner, the enumeration in the Constitution of certain powers conferred on Congress with reference to the District of Columbia, does not by implication take away other governmental powers. One of the governmental powers which Congress exercises over all territory or land of the United States is the right to admit such area in the Union as a State. This power not having been expressly or by implication taken away with reference to the District of Columbia still exists in Congress.

In the case of the First National Bank v. Yankton County, 101 U.S. 129, the Court discussed the power of Congress to legislate for the territories. It was said:

“In other words it (i. e. Congress) has full and complete legislative authority over the people of the territories and all the departments of the territorial governments.

In discussing the relationship which Congress bears to the Territory of Alaska and to the District of Columbia, the Court of Appeals of the District in U. S. ex. rel. Humboldt S. S. Co. v. Interstate Commerce Commission 37 App. D. C. 274, held:

“Congress in the government of the territories, has plenary power, except as limited by the Constitution. The particular form of government it shall establish is not prescribed. It has for example, prescribed one form of government for New Mexico, another for the District of Columbia, and still another for Alaska. * * * While Congress in the government of the District of Columbia is limited by the provisions of the Constitution not applicable to other territory of the United States, the same power exists of establishing local government.”

In the case of the Corporation of Latter Day Saints v. U. S. 136 U. S. 32, 42, it was held:

“The power of Congress over the territories of the United States is general and plenary.”

While there may be some fundamental guarantees of life, liberty and property under the Constitution which are applicable to the District of Columbia and not to the territories nevertheless in political matters Congress exercises “plenary” power over both. (Employers, Liability Cases 207; U. S. 500.)

In the case of Callan v. Wilson, 127 U.S. 540, the Court held with reference to a trial by jury:

“We cannot think that the people of this District (of Columbia) have in that regard, less rights than those accorded to the people of the territories of the United States.”

The extent of the authority which Congress exercises of the District and over the Territories was clearly discussed in the case of Binns v. U.S., 194 U. S. 486. The Court held that Congress exercised plenary power, and Mr. Justice Brewer, in writing the opinion of the court, said:

“XXXX[491] It must be remembered that Congress, in the government of the territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution; that the form of government it shall establish is not prescribed and may not necessarily be the same in all the territories. We are accustomed to that generally adopted for the territories, of a quasi state government, with executive, legislative, and judicial officers, and a legislative endowed with the power of local taxation and local expenditures; but Congress is not limited to this form. In the District of Columbia it has adopted a different mode of government, and in Alaska still another. It may legislate directly in respect to the local affairs of a territory, or transfer the power of such legislation to a legislature elected by the citizens of the territory. It has provided in the District of Columbia for a board of three Commissioners, who are the controlling officers of the District. It may entrust to them a large volume of legislative power, or it may, by direct legislation create the whole statutory law applicable thereto. For Alaska, Congress has established a government of a different form. It has provided no legislative body, but only executive and judicial officers.”

In the Insular Tariff Cases after the Spanish War, Mr. Justice Brown, in writing the opinion of the Court in the case of De Lima v. Bidwell, 182 U.S. 196, said:

“Under this power (to govern and control the Territories) Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. In short, when once acquired by treaty, it belongs to the United States, and is subject to the disposition of Congress.”

Compare also Downes v. Bidwell, 182 U. S. 244.

In the great case of Cohens v. Virginia, 6 Wheat, 265, there was involved the validity of a lottery law enacted by Congress with reference to the District. Daniel Webster was one of the counsel and argued, page 435, that the clause of the Constitution relative to the District conveyed powers so peculiar and specific that no other city in the Union could be given such a charter by Congress and if every Federal power granted in the Constitution were destroyed, this power over the District of Columbia would remain. But Chief Justice Marshall held that the power of exclusive legislation over the District was conferred on Congress as the legislature of the Union and that such powers could be exercised in no other way:

“In the enumeration of the powers of Congress which is made in the eighth section of the first article, we find that of exercising exclusive legislation over such district as shall become the seat of government. This power, like all others which are specified, is conferred on Congress as the legislature of the Union; for, strip them of that character, and they would not possess it. In no other character can it be exercised in legislating for the district, they necessarily preserve the character of the legislature of the Union; for it is in that character alone that the constitution confers on them this power of exclusive legislation.”

These decisions of our highest Court plainly show that the political power which Congress exercises over the District is plenary, that it is full and absolute, and is similar to that exercised over the territory or other property of the United States. Congress may in each case create a State out of such area.

RETROCESSION OF ALEXANDRIA COUNTY, VIRGINIA

The land secured from the State of Virginia was retroceded to that State by the Act of Congress of July 9, 1846. If Congress had the right to divest itself of the power of exclusive legislation over a portion of the District by this retrocession, Congress can erect the State of Columbia out of the remaining area. It was argued that this act was unconstitutional and that the exclusive jurisdiction over the seat of the Federal government could not be surrendered. The act was passed in spite of this objection and the retrocession has stood without successful challenge for a period of seventy-five years. As this is essentially a political question, it is very doubtful whether this act of retrocession can ever be considered by the courts. In the case of Phillips v. Payne, (1875) 92 S. U. 130, an attempt to raise this question was refused. (Wilson v. Shaw, 204 U.S. 24; Luther v. Borden, 7 How 1, 42).

In like manner the erection by Congress, with the consent of the State of Maryland, of the State of Columbia, would be a purely political question and the courts would have no jurisdiction to consider it.

From a study of the wording of the Constitution and of the original grants of this territory from the States of Maryland and Virginia; from an examination of the decisions of the Supreme Court of the United States; and from the action of the political branch of the Government in retroceding a portion of this area to the State of Virginia; it must be conceded that the weight of precedent and authority is in favor of the proposition that Congress has authority, with the consent of the State of Maryland, and without a Constitutional Amendment to erect out of the District of Columbia a Sovereign State—THE STATE OF COLUMBIA.

FRANK SPRIGGS PERRY
Associate Professor of Constitutional Law

Justice Stafford Eloquent on Washington: Past, Present, and Future – The Washington Herald, May 9th, 1909
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Over the last few months I have transcribed the New York Times and the Washington Post‘s coverage of this historic dinner, but today I am honored to share the entire text of Justice Stafford’s speech that was published in full in the Washington Herald (and to an extent in the Washington Times).

The speech marks, according to Justice Stafford, the first time the president of the United States had ever met with the business leaders of Washington. He makes one of the best cases for including the people of the District of Columbia in Congress that I have ever read or transcribed. When reading this speech and seeing his ultimate predictions come to pass, I actually teared up at one moment. History had come alive before my eyes and it hurt. It hurt that he had predicted exactly what would come to pass in the next century. But alas, he highlighted what has not happened yet- the voice of the people of Washington in both Houses of Congress.

In his speech, he places before the president of the United States the notion that I presented as an April Fool’s Day joke this year, that the District of Columbia be afforded one Senator, and a proportional number of members of the House of Representatives. This speech was written before the Seventeenth Amendment was passed, which puts the election of each State’s two Senators up to popular vote, but I think his intention was to show that the District of Columbia is a not just a city, but its a special city, home to the Federal government, that deserves its own voice in the elected body that the Constitution gives full control over it’s dominion, Congress.

Please take a moment to read this historic speech by District of Columbia Superior Court Justice Stafford:

Justice Stafford Eloquent on Washington: Past, Present, and Future – The Washington Herald, May 9th, 1909

“Mr. Chairman, the President of the United States, and you, my fellow citizens:

“I pledge you in a sentiment that is almost a prayer”

“‘May this prove a fortunate day for the District of Columbia’

“Without doubt the people of the District look upon the occasion that has drawn us here as a most happy augury.

“The Chief Magistrate of the nation, not more respected than beloved, has signified his willingness to sit at their board, to break their bread and taste their salt. It is proof of interest and kindness that has touched all hearts.

“We who are seated around these tables are only a handful out of many thousands who in thought and sympathy are with us at this feast. Presidents have cone and gone, doing their duty by the District as they saw it, but in the press and through of larger duties too often prevented from giving to local matters the attention they deserved.

Points to Precedent.

“Never before has a President at the beginning of his term thus held out the hand of friendship to our people. Our President has seen much of Washington. But more than that, he has traveled far and wide, he has studied the capitals of other countries, their institutions and their laws. And thus he adds to the true promptings of a generous heart the wisdom of a ripe experience. Those are the qualities that are needed here and now. It is the hour for a statesman. The population of the District has increased so rapidly, it is growing so in wealth and beauty, the greatness of its future is already assured, that the time has come when the true relations between the District and the nation must be clearly conceived and accurately defined, and when an ideal must be formed for the District of Columbia– an ideal to be worth through generations true enough and grand enough to claim the attention and the devotion of all the land.

Need of a Home.

“The men who made the Constitution were absolutely certain of one thing, and that was that this Federal government must have a home of its own. ‘Over such a district,’ the Constitution in so many words declares, the Congress shall ‘exercise exclusive legislation in all cases whatsoever.’ So far as general legislation is concerned, there is no power in Congress to delegate this authority. It must legislate itself. When it attempted once to bestow upon a Territorial legislature for the District the authority to make general laws, the court declared the attempt unconstitutional and vain. The utmost it can do in this direction is authorize the enactment of local regulations. No attempt to legislate for Washington will be worth the making unless it is made in the same spirit in which the founders worked.

“It was said of an Eastern temple, ‘It was designed by Titans and finished by jewelers.’The tribute is capable of double meaning. A great work should be grandly conceived and then executed with minutest pains.

“We wish as much for Washington. But the jeweler must not meddle with the architect’s design. If he does, men may say: ‘It was planned by Titans; it was finished by pygmies.’

“Less than half a century had elapsed from the founding of the Capital before a congress was found pusillanimous enough to surrender and cede back thirty square miles of Federal soil, and the noble patrimony the nation had received from the Father of his Country was broken in two, and the Virginia portion cast away.

“Or task to-night is to put the Washington of our day to the test of the great principles that controlled the founders of our government, to view the work they left us in the light of all that has developed since, and to plan for the future as men of their vision have planned in our surroundings.

Sees Three Meanings.

“What do we mean when we say the District of Columbia? There are at least three meanings in which the expression may be accurately used. It may mean the mere territory, the seventy square miles of land and water. It may mean the municipal corporation which has been created by the act of Congress. It mean the political community, which may be called, and by the Supreme Court has repeatedly called, for certain purposes, a State. In this third sense it is not a mere municipal corporation, but is filled with the sovereignty of the United States of America.

“It is of the utmost importance to distinguish between these meanings, especially between the second and the third, if we would keep our thinking clear. Let us take a moment to trace this distinction in the transactions of a century.

“When the United States, in 1800, took possession of this territory it found local self-government here. For two generations it left it undisturbed. ‘Prior to 1871,’ said Mr. Justice Bradley, in a case before the Court of Last Resort, ‘the government of the United States, except so far as the protection of its own public buildings and property was concerned, took no part in the local government.’

A Municipal Government.

“‘The officers of the departments, even the President himself, exercised no local authority in city affairs.’ In 1871 the Congress created here a new government expressly ‘for municipal purposes.’

“It had its governor and its legislature- the latter, of course, elected by the people. It had also a board of public works, whose members, including the governor as its head, were appointed by the President and Senate. This board laid out the money raised in taxes, and assessed the owners benefited by improvement.

“The court held that its acts were binding on the District, and that in spite of its appointment by the President, it was only a branch of municipal government. Thus matters remained until 1874, when Congress tore down all it had previously done, and started new. The governor and the board of public works were abolished, and the power which they had exercised was intrusted to a commission of three to be appointed by the President and Senate.

“Four years later, in 1878, the new arrangement was made permanent. Nevertheless, the contention was made before the Supreme Court of the United States that the effect of the new act was to destroy the District of Columbia as a municipal corporation, except in name, and to make it nothing more than department of the national government. The contention was ruled down.

Source of Authority.

“The fact that its officers were appointed by the President, said the court, did no make the District of Columbia any less a municipal body corporate. Recognizing the general desirableness of local self-government, it held that the principle of representative government was legally satisfied when the appointment of local officers was made by other officers who themselves had been elected by the people, saying: ‘The people are the recognized source of all authority, and to this authority it must come at last, whether immediately or by a circuitous process.’

“Whether a flaw is to be found in this reasoning as applied to the sitution before the court, inasmuch as the people of the District of Columbia, the people to be governed, never did have a share in electing the President and Senate, who were the appointing officers, I will not stop here to inquire; for my present purpose is to point out the separation that has always been recognized between the District of Columbia, as a mere municipal corporation, and the District of Columbia as a quasi state.

“There is only one sovereign in the District of Columbia. Indeed, in respect to sovereignty, the situation is precisely the same as if there were no other domain affected by the central government; as if all its functions were performed here.

“Why, then, it may be asked, should there be such a municipality as the District of Columbia at all? Why should not the general government take direct control and administer all the affairs of the District through its own bureaus? It would not be so easy to answer that question if two facts were other than they are:

“First- If there were no citizens of the United States except those who live in the District.

“Second- If the District elected the national officers. But there are 350,000 people here, and there are some 90,000,000 outside, and all are citizens of the United States; and the 350,000 who live here have some interests which they do not hold in common with the 90,000,000 who live outside.

Draws a Picture.

“It is, in part at least, for the recognition and protection of these separate and peculiar interests that a municipal government exists and is required. All the more is it needed by reason of the fact that there is no suffrage. Let us picture what might be. The streets and public works might all be put under the War Department, the public health under the Surgeon General, the charities made a bureau in the Department of Commerce and Labor, or perhaps of the Interior, and the schools turned over to the Commissioner of Education. And so it might go on, until the local government was completely bureaucratic- until the rod of national administration, turned serpent, had swallowed up all the little rods of local administration and was left alone upon the floor.

“In the meantime the city, growing by leaps and bounds, has doubled and trebled its present population, and we have here a million people, without a word to say, in theory or fact, directly or indirectly, about the streets they walk, the water they drink, the light they burn, or the education of their children- everything done for them and done by officers in whose selection they had no voice and who have been selected with no particular reference to their opinions or their needs.

“To some of us that is not a pleasing spectacle.

A Nation’s City.

“Certainly we must not forget that this is a national city. There is little risk of that. But there are institutions, many and important, which are not national in their aim or character. They are exactly such institutions as the same numerical population would require were this no the Nation’s Capital. That is true of the institutions of charity and punishment. We should need to have schools, recording offices, post-offices, and courts; we should need streets and bridges, and thousand things beside, by reason of the fact that we are a city.

“Institutions that answer the needs of the community merely as a community, without reference to the national government, should not these be treated as local institutions? Should they not be administered as a part of the municipal government and officered by men identified with the District?

“Those courts of the District which deal not exclusively with local controversies, but in large measure with disputes to which the nation is a party, may perhaps be fairly made up, one-half of member drawn from the locality and one-half from the nation at large. This seems more appropriate, inasmuch as those who hold these offices hold them during good behavior, and when they come here come hoping to behave well enough to remain through life.

“But many offices relate exclusively to this community, at least as much so as the offices of any community can be said to relate to itself alone, and why should not these be filled by local citizens? Even if there should be no statute thus restricting the selection, ought not such a course be pursued as a permanent policy?

Demand of Consistency.

“Why should the people of the District have their deeds recorded by a man from California? Why should Washington be the only city in the land that cannot have a postmaster appointed from among its citizens?

“If we are to keep up the form of municipal government at all, does not a fair consistency demand that we should treat it as municipal, as existing, among other purposes, to care for all that is peculiar and local in the interests and needs of the community? Will it not be wisdom to treat it so?

“Let us not forget that there are thousands upon thousands here who have no other abiding place. Their roots have struck deep into the soil. They love the city with all the national pride we share with them, and with that tender sentiment which we call ‘the love of home’ besides. Is it wise to treat them as aliens in the house of their fathers?

Others have lived here till all ties with other places are dissolved and they expect their children will live here when they are gone. These people, so completely and irrevocably identified with the place, constitute an element not wisely to be overlooked when one is considering how local affairs may be most prudently and loyally administered.

May Be Parting.

“Who knows? Perhaps we have come already to the parting of the ways. Little by little the local hold is lost. Here a hospital is drawn under the control of a department. There the jail slips out of the hands of the Attorney General. Now it is proposed that the schools be placed under a bureau; and now, that the city shall be officered on the principle of efficiency alone, by one who can be found who is most competent, though he never saw Washington before.

“It would be something to assume that among 350,000 such as we find gathered here, not a single man could be found capable of conducting the business of the city. But if it should be conjectured that in some far off place a commissioner might be found somewhat more efficient, would that difference in efficiency make up for the sacrifice of one more bond- sometimes it seems as it were the last- between the government and the locality?

“The problem of city government is not altogether, I venture to think, a matter of perfecting the machinery. Men are not altogether machines. They have sentiments; they have hearts. And if there had not been sentiment and heart, as well as brain, there would be to-day no Washington.

No Need of Suffrage.

“As far as the municipal government is concerned, the people of the District seem to have settled down to the arrangement that there should be no suffrage.

“The accept it- very much as Lord Dundreary’s brother Sam accepted his embarrassment in being born, and especially being born bald-headed. ‘You see (Sam), he wasn’t consulted; and there he was, and it was too late to do anything about it.’ But suffrage or no suffrage in municipal affairs has nothing to do with the principle of which I speak. I believe it should be the policy of the government, alongside of the national spirit that inspires all hearts, to foster and perpetuate a sturdy local patriotism, a local and peculiar civic pride; and to this end, that all offices of this kind should be filled by those who have become residents of Washington for good and all.

“Sir, I am not included to discuss tonight the various proposed changes in the constitution of the city government. These concern a possible increase of efficiency in the municipal machine. In what I am yet to say I prefer to dwell upon a broader question. But no one ought to refer to the form of government that has given shape to our affairs since 1874 without doing justice to the splendid advances that have been made under its direction. In 1878 the plan was adopted of raising upon the ratable property here a tax of 1.5 per cent and of matching that with an equal amount from the national Treasury.

“Up to that time the District had carried the burden year by year, almost or quite alone, and was sinking under a debt of many millions. Under the new arrangement Washington has sprung to her feet. Parks have been laid out, avenues extended, bridges built, public buildings erected, grade crossings abolished, railway terminals improved, a magnificent new station built, the sewerage and water systems practically made over, millions upon millions spent toward making the city in health and beauty what it ought to be. Meantime absolute fidelity in the discharge of duties, no stain or hint of corruption, scarcely a dishonest transaction ever charged. Surely that is a record for any city to cherish and for those who have had a share in making it to look back upon with pride.

Money for Improvements.

“Some forbidding obstacles have been encountered and are met with still. One is, this being compelled to pay for permanent improvements out of the current income. What other city is expected to pay for its great works, to last for generations, out of its ordinary receipts, meanwhile taking it out od the schools and scrimping its legitimate expenses? Any other city would raise the money on bonds and pay them a little at a time.

“Washington need not be bonded, since the national treasury can supply it with the loan and let it be paid back at a reasonable rate; but the principle is sound. It is enforced by the late Secretary of the Treasury in his able report for 1908, where he sets forth with great lucidity the need of a national budget to bring about an adjustment between disbursements and receipts, with a rigid separation between expenditures for the ordinary service of the government and those for permanent public works, the latter to be met by bond issue.

“But there are obstacles of graver import and they constitute defects radical and without remedy in the present relation between nation and District. They can be removed only by a change in that relation itself. We shall all agree that to legislate wisely requires two things– first, a lively interest in the object of legislation; second, a clear intelligence touching the subject at hand. There being no representative from the District itself in either branch of Congress, it becomes necessary to commit the interests of the District, and the interests of the nation in the District, to hand unfamiliar with the subject and without any lively interest therein.

“The Congress as a whole cannot be expected to supply these requisites. No one pretends it does. It is engaged upon a thousand subjects, many of which appear to its members to be vastly more important than any that concerns the District. We cannot wonder at it; it is in the nature of things that it should be so. The step logically required by this condition is next taken.

“A committee in the House and a committee in the Senate are specially charged with these affairs. Not that their word is accepted as final. If it were, some difficulties would be escaped. But in the end their report must run the gantlet of the whole House or Senate.

Need for Knowledge.

“Here ignorance of District affairs has often shown itself so egregious and glaring that it could excite nothing but laughter, if tears were not often a more fitting recognition of the folly.

“And when that occurs there is no representative of the District to meet the ignorant, unfounded claim. Three hundred and fifty thousand people are voiceless in that hall. The committees cannot meet the emergency. To expect it would be to expect more than mortal men can do. Who are the members of the committee?

“Are they Senators and Representatives set apart for this work and free to devote themselves entirely to such business?

“By no means. They have their own constituencies to serve, and they have, besides, their share of responsibility for the general legislation, like all their fellow-members.

“They are appointed; they do the best they can; and if they give sufficient time to our affairs to understand our problems, they run the risk of losing their seats entirely by being thought at home to neglected their own States or districts.

“I am credibly informed that the risk has turned into a certainty in more instances than one. But, more than that, the membership of the House and Senate changes and the membership of the committees changes, too.

“Hardly has a member become reasonably acquainted with our subject than he is called away, another takes his place, and the whole process of education must be begun again. That is the radical and incurable defect of the present system. Keep your three Commissioners if you will, or substitute for them a single head, improve the machinery of municipal administration all you can, until it runs with the regularity of a Swiss watch- you have not touched the trouble.

“What is needed is two men in the House and one man in the Senate; real live men with blood in their arteries and brains in their heads; men who have lived long in the District of Columbia and belong to her; men who known her needs and her capacity, who know the history and condition of her institutions, her charities, her prisons, the views and aspirations of her people; men who are proud of their connection with her, and proud that to her soil has been committed the ark of civil and religious liberty.

“What we need is members of these bodies with the prestige that belongs to members; not figureheads, not lobbyists, not delegates, but a member of the Senate and two members of the House, able enlightened, informed, fit to represent the will and judgment of 350,000 citizens gathered within these bounds.

An Amendment Needed.

“But that requires an amendment of the Constitution. So it does. An amendment in strict accord with the principles of the Constitution, made necessary by the changed conditions of 120 years, made unavoidable and inevitable by the changes that will take place in the fifty or one hundred years to come. Do you imagine that when 1,000,000 or 1,500,000 shall be swarming in our borders they will be the only people in this broad domain to have no hand in the government of this magnificent republic, no word in the election of its President, no tongue in the national assembly?

“When 1,000,000 men are there, when they ask why they alone can have no part in a republican form of government, do you imagine they will call it a sufficient answer to be told ‘Because you live in Washington?’

“If you lived in Pumpkin Hook or Bloody Gultch, you might, but not while you lived here.

“Bear in mind, I am not speaking of municipal suffrage. I am speaking of the right of a million of simple American citizens to have a share-less than a one hundredth part would be- in the legislation that concerns their country and its Capital.

“Suppose they have no more right than the same number of people who live anywhere else in the United States. Have they not as much? And that is all the right of which I speak.

Believes in Humanity.

“But I hear it said, ‘The people of the District do not care for suffrage.’ Well, all I can say to that is this: If the people of the District of Columbia do not really care to have a part in the government of this splendid country, they do not deserve to have it, and nobody need fear that it will be thrust upon them. But I cannot believe that statement.

“‘Say, seignors, are the old Niles dry?’

“I cannot believe that the human heart has changed.

“I cannot believe that principles have lost their power.

“I cannot believe that the deep instincts that built up this wonderful fabric of free government have died out here in the very seat of its majesty, and that here alone the ‘bright consummate flower’ of liberty has gone to seed.

“There is no doubt that they need quickening. There is no doubt that they are have sunk into the torpor of faculties disused. But hold before their eyes the hope of what I am describing, and you shall see whether self-respect and the desire for self-government are dead.

“Sir, if I had it in my power to-night to dispose of this matter as I would, do you know what I would do?

“I would not change the constitution.

“I would not give the people of the District suffrage.

“What I would do is this:

“I would set to their dry hearts the flame of that old Promethean torch, the love of liberty.

“I would fill them with divine unrest at their condition.

“I would set beside that condition a picture of the dignity and power they might enjoy as real citizens of their country.

“I would move them first to desire and then to demand their portion of our heritage.

“I would nerve them to toil for it and fight for it through years of bitter opposition- and then at last, when the agitation had created a new Washington, when 400,000 or 500,000 people were calling as with one mighty voice for the great prize of representative government- then I would bestow it on them.

“And sir, I believe that is exactly what the god of time will do.

“A city of the dumb! Mr. Chairman, I have heard you speak of a little village on an island off the New England coast inhabited entirely by deaf mutes.

“They live unto themselves.

“They marry and intermarry and rear children who are dumb as they.

“They go about their tasks, but speak no word.

“The busy hum of life goes on around them; the shuttles of the world’s activities fly to and fro, but into the growing web they weave no strand.

“Sir, I will not extend the parallel. It is too obvious and too painful to be drawn. But that is not the Washington that shall be.

“Only let the agitation begin.

“Let it start here to-night.

“Why not make this occasion historic?

“Let every true son of Washington, native or adopted, go out from this feast strengthened and heartened for a long enlistment. Let him know for once in his life the glory of being possessed of a grand idea- the sublime enthusiasm of being lost in absolute devotion to a great cause.

“Let them meet and join hands and stir one another’s hearts, quicken one another’s minds, and sustain on another’s courage. Let it go on.

“It will be met with opposition; it will meet with ridicule; it will meet with censure; it will take years; it may take many- but it will have one possible outcome if the sons of Washington are worthy the name they bear.

Suffrage Question.

Again I say, I am not speaking now of municipal suffrage at all. Let the present arrangement, or some improved substitute for it, be continued if you please. What has that to do with the broad and fundamental fact that the hundreds of thousands here should have their due and proportionate representation in the National Assembly- should have the same right that other citizens enjoy of giving their votes in the election of the Chief Magistrate of the republic?

“‘The republic! It is not alone for the District of Columbia that I bring the proposition forward. The interests of the nation would be served as well.

“They would not be served first of all by the increased efficiency and propriety of the laws that would be enacted; in the next place, by the fact that the members from the District, being familiar with the local situation, and serving on the local committees, would relieve the members from other States of much of their present burden, leaving them freer to perform the duties for which they were specially selected.

Need for Real Men.

“Further, it would serve the nation by adding to Congress men of weight and influence in national concerns.

“We should have here a constituency peculiarly rich in material for Representatives.

“But, more perhaps that all the rest, the change would serve the interests of the whole nation by recognizing the grand principle of representative government here, in the most conspicuous position in the country, where hitherto it has been cast aside.

“Men could no longer point the finger of scorn at us, and say:

“‘Washington gives the lie to your pretensions.’

“‘Look! In the very seat of national greatness you acknowledge by your acts that your form of government is a failure. Until we are honest enough to live up to your principles, we shall deserve all our trouble; and, sir, from the bottom of my heart I do believe that the greatest troubles we have spring from this fact, that we have turned back upon those principles.

“We shall never find peace or safety until we return to them again.

“Shall we say we fear the suffrages of ignorance and vice- the ignorance and vice that we ourselves are to blame for- that could not last a generation if we did our duty by our fellow-men?

“Sham on the race or the community that holds its hands the wealth of the continent and carries in its brains the accumulated culture of the centuries and yet refuses to lift that ignorance and vice to the level of enlightenment and virtue.

“Tear down your shacks and shanties.

“Let in the sun upon your noisome alleys.

“Build decent habitations for the poor to dwell in.

“Make your prisons moral hospitals instead of breeding cells for crime.

“Spread education broadcast in the streets.

“Let us do the work of Christians at our doors before we admit that our fathers were fools and that democratic government is all a dark mistake.

Menace to the State

“Never until the men of wealth and education have spent their last surplus dollar and exhausted the ingenuity of their brains in the effort to make their fellow-men worthy to be sharers in the government, never until then will they have a right to hide behind an excuse like that.

“I admit that an ignorant and degraded class armed with the ballot is a menace to the safety of the state; but I deny that it is a greater menace in the end than that same class, robbed of its rights,thrust down into the dark, and left as no longer necessary to the be regarded or assisted because no having any part in the affairs of state.

“Strip men of the ballot and you take away from society the most powerful inducement that can prompt selfish human nature to educate and elevate its helpless and its poor.

“We must find fault with the Creator if we wish to complain that wealth, virtue, and culture cannot be safe in the neighborhood of poverty, ignorance, and vice. He means that it shall be so. He sees Blagden’s alley as well as Dupont Circle, and He has made it certain by the laws of nature, by every wind that breathes across the city, by every tiny insect that takes its unregarded flight from home to home, that Dupont Circle shall not be safe while Blagden’s alley is rotting with disease and filth.

Laws of Nature.

“The laws of nature are democratic. It is just the same in government. A community that has the power to lift ignorance and vice to its own level and will not stretch out its hand to do it, deserves to be ruled by ignorance and vice; and eternal justice will see to it that it is so. We cannot escape our duties; let us face them, then, like men.

If Franklin or Jefferson were here to-day and saw this mighty population with no voice in its affairs, he would lay his finger, like a wise physician, on the body politic and say:

“Here- here is where you are ailing.

“Here faith in the principles that brought us through. Let us take up the stitch our father dropped. Let us apply to our situation the rules of government they applied to theirs. If you should say to Jefferson, ‘Why should we be disturbed? Will it give us more interest on our money?’ Jefferson would have answered you ‘That I cannot tell, but this I know, that the man who loves freedom for anything but freedom’s self was made to be a slave!’

“Even if we should fail, men would write over our graces the profound saying of Guizot, ‘The struggle itself supplied in some measure the place of liberty.’ But we cannot fail.

“Is this an hour to doubt or question the principles of free government?

“Now, when those principles, encouraged by their success upon this continent, are shaking every throne upon the Bosphorous Young Turkey is making good its claim to constitutional government?

Far East Perspective.

“When Persia is starting from her revelry and old China is turning from the slumber of 4,000 years? Now, when in the islands of the South Pacific we ourselves are reaching out a hand to lead a strange race into the ordered paths of Anglo-Saxon freedom?

“Let the sons of Washington beware lest the little brown men of the Philippines enter the kingdom of representative government before them. If the people of Columbia prefer to take their ease, no rude reformer will disturb their rest. But when we have passed away, men will describe us as the dying patriarch in his prophetic vision pictured the most degenerate of his tribes:

“‘Issachar is a strong ass, couching down between two burdens; amd he saw that rest was good, and the land that it was pleasant; and bowed his shoulder to bear, and became a servant unto tribute.’

“Sir, the danger to this country lies not, as we sometimes think, in the poor immigrant who flees to us from afar, still smarting from the lash of tyranny- ignorant and low-minded though he be. The prize of citizenship will appeal to him. He will clutch it and hold it fast as ‘the immediate jewel of his soul.’

“The danger lies in him who, ‘like base Judean, throws a pearl away richer than all his tribe,’ in the man who will share the blessings of liberty without bearing its burdens; in the man who is willing that impudence and theft shall sit in the seat of power, so long as he is left free to pile up his millions or scatter them like a lord on the playground of Europe.

The Nation’s Capital

“The Capital of the United States- what is it? It is not marble palaces nor lofty domes nor splendid obelisks. If it is anything, it typifies a great idea.

“The deepest word that was ever uttered to interpret that idea was wrung from lips that trembled between hope and despair upon the field of Gettysburg- ‘of the people, for the people, by the people.’

“Can Washington typify that idea while it stands as it does to-day? It cannot be. It must be changed.

“It will be changed.

“The time will surely come when he who stands in the shadow of these majestic structures, and of the prouder ones that shall arise, will have no cause to hang his head for shame at any violation of our principles, but will feel that here- here more truly than anywhere else on the face of the whole earth- he is standing in their august and visible presence.

“And now, Mr. President, at the end as the beginning, we turn to you not to express the hope that you may discharge the new duties with clearer sight or firmer fidelity than you discharged the old- for that would be impossible- but that in your more exalted station you may find a wider field for your beneficent endeavors, cheered, as will be, by the personal love of millions of your fellows and supported by the unwavering faith of all America.”

Also see:
+ TAFT STIRS CAPITAL BY SUFFRAGE SPEECH – The New York Times, May 10th, 1909
+ PRESIDENT OPPOSED TO SUFFRAGE IN DISTRICT – The Washington Post, May 9th, 1909
+ JUSTICE STAFFORD’S PLEA FOR SUFFRAGE IN WASHINGTON – The Washington Times, May 9th 1909

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.

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.

Related Legislation Entries:

The D.C. Statehood Vote – The Washington Post, November 20th, 1993
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The D.C. Statehood Vote

The Washington Post, November 20th, 1993

Today the House of Representatives begins debate on whether the District of Columbia should become a state. The deliberation is historic, as will be the vote expected to follow this weekend. The issue is not the fate of statehood legislation this year: Supporters concede they have little chance of winning. It is whether a lopsided defeat will ultimately cost or break political ground for statehood. D.C. Delegate Eleanor Holmes Norton contends that even in defeat, a vote `would give the undemocratic treatment of the District the serious national attention it would never attract in any other way.’ If that is the outcome, the statehood debate will be a milestone.

There is, after all, a historic wrong to be set right. The tax-paying, war-fighting citizens of the District, unlike citizens in the 50 states, have no control over their own governmental affairs. As residents of the nation’s capital, they are denied voting representation in the Congress, final word on the budgets and laws they enact, the ability to appoint their own prosecutors and judges and the ability to work out reciprocal taxing arrangements with neighboring jurisdictions. They are at all times subject to the whims of Congress.

We had hoped a way could be found for citizens here to enjoy the full political participation that is their due and still have their city remain the seat of the national government. But the defeat of a proposed constitutional amendment that would have given the District full congressional representation, and congressional inaction on other political reforms, made that outcome impossible. It became apparent that these goals could only be achieved in the context of statehood–but statehood that fulfilled certain clearly understood conditions.

As we said earlier this year, there are critical issues to be faced to make statehood feasible and desirable. We refer to a prenegotiated agreement or understanding with suburban representatives for a limited commuter tax, resolution of the congressionally created unfunded pension liability problem that threatens the District’s financial solvency and a predictable, stable and guaranteed payment to the new state.

Of the three issues, today’s statehood proposal addresses only the payment question. It eliminates the federal payment and replaces it with a payment in lieu of taxes arrangement that mirrors the funding scheme for other states with federal property within their borders. The merits of that alternative, as well as Congress’s role in addressing the other issues that could threaten the new state’s fragile viability, ought to receive a thorough airing this weekend. If a consensus can be reached on how best to approach those outstanding issues, this unprecedented debate, whatever the vote, will take statehood to a new and better place.

This newspaper article was obtained from the Congressional Record in the Library of Congress related to H.R. 51, The New Columbia Admission Act of 1993. The article is not in the public domain but is being republished here under the fair use doctrine of U.S. copyright law in order to continue my advocacy for full representation for the American citizens of the District of Columbia.

Tax Fairness for D.C. – The New York Times, October 30th, 1993
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Tax Fairness for D.C.

The New York Times, October 30th, 1993

With a population of nearly 600,000, the District of Columbia has more people than Vermont, Wyoming or Alaska. Yet its Mayor and City Council have limited power. And the District is denied a voting representative in the same Congress that rules on its affairs.

The colonial character of this arrangement was underscored this week when Congress voted on the Washington D.C. budget, and grandstanding politicians from other places tried to deny its citizens the right to spend their own money as they see fit.

The District’s budget totaled $3.7 billion. The $3 billion came from District citizens in taxes; all but a tiny fraction of the rest is what the Federal Government pays for occupying 41 percent of the District’s land, on which it pays no taxes. The Federal payment is a miserly sum, given that the Government presence costs the District $2 billion a year in lost tax revenues.

Still, many in government see the District as a pawn in a political game. George Bush once vetoed the city budget, forcing the District to ban the use of even locally raised tax revenues to furnish abortions for impoverished women. C-Span’s broadcast of the District’s budget vote showed the latest act in this political amateur hour.

Representative Dan Burton, Republican of Indiana, seemed not to have read the budget bill but that didn’t deter him. He questioned the salaries of the District’s City Council members, and condemned District voters who chose to return the former Mayor to office as a Councilman. He picked out random lines in the budget and asked the sponsors to explain them. This nitpicking came at the end of a tortuous 18-month process that the District suffers to get its budget.

Congress as usual? Perhaps. But imagine yourself a citizen of the District, with no voting representative in Congress, watching as Congressmen questioned not just the vote you had cast in your city, but your entitlement to tax dollars that you had paid to local government for local use. How angry would you be?

Mr. Burton rationalized his antics by contending that Federal tax dollars were at stake. But the bulk of the budget is D.C. tax money. The Federal payment that makes up the rest is rent, and skimpy rent at that. Congress oversteps in trying to control how its bargain-basement rent is spent. Mr. Burton was performing for the people back home. But what people in Indiana need to see is that their Congressman is trampling on the rights of citizens just like them, all for a little time on camera. No wonder Congress was besieged by District demonstrators agitating for statehood.

It’s hypocrisy that America champions democracy abroad while refusing fair political treatment to the citizens of its own capital.

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Nikolas Schiller is a second-class American citizen living in America's last colony, Washington, DC. This blog is my on-line repository of what I have created or found on-line since May of 2004. If you have any questions or comments, please contact: