George Town D.C. Decr. 10th. 1826.
Relying upon your benevolence and the honesty of my own intentions, I take courage to address you again.
When I requested your opinions on the expediency of receding Georgetown to Maryland, I frankly confess, it was with the design of influencing public sentiment, in case of recieving a favorable answer. I feel so warmly interested in this good cause, that I omit no means that are honourable, to advance its interests with the community. Your views, if known at the particular juncture when they were requested, would have effected much, but, even then, had they been given, with an injunction of privacy, no temptation could have induced me to publish them for any purpose, all things considered, I must approve of the propriety of your declining to make a declaration of yr. opinions on a subject of a local nature and which divided men’s minds. I, however feel justified, in requesting most respectfully, and from motive’s of public utility, that you would favour me, with your opinion respecting the power of Congress, to cede back the whole or any part of this District, and, if convenient, your reasons for the opinion.
This matter is touched upon incidentally in page 26 of my pamphlet, and your name, with that of Mr. P. Barbour, is used to sanction my construction. For the same end, I adduce the authority of acts of Congress, receding to certain States, land obtained from them, for the erection of Forts, Arsenals &c. The term "like authority" used by the Constitution, in relation to the territory ceded by States for the erection of Arsenals &c, I concieve, alludes to and is identical with, the "power of exclusive legislation in all cases whatsoever," mentioned in the preceding clause relative to the territory to be ceded for the Seat of government. "All cases whatsoever," in my estimation, include the case of retrocession of the whole or part of the District, and "exclusive legislation," I take to be, legislation independent of or, uncontrolled by the States, in the particular instance for which the power was granted. From this I deduce, that Congress in the exercise of a just discretion can recede to the States from whom the cession proceeded, with their concurrence all the territory so ceded, without asking the consent of the other states of the Union in their distinct and sovereign capacities, in other words, without an amendment of the Constitution. It is a transaction, entirely between the two parties originally contracting–viz–the Congress of the United States, on the one side, and the States of Virginia and Maryland on the other. If these parties consent to the retrocession, an ordinary act of Congress, will be valid to that effect; but as the cession of the District was a contract not to expire by limitation of time, I believe that no act of any one of the parties, would be binding, without the consent of the other. Indeed it appears to be conceded on all hands, that no retrocession can be effected, without the consent of the states of Maryland & Virginia, and yet, if I mistake not, Congress assume the power of removing, without their consent. Is this latter power constitutional? If the power to retrocede do not reside in Congress alone, why should the power to remove, which in fact is one and the same thing, and must be subject to the same restrictions. Retrocession may happen in compliance with the wishes of the people, for general reasons, not affecting in the remotest degree the permanency of the seat of government, but a removal can be caused only by the inadequacy of the territory to answer the purposes for which the jurisdiction was assumed. And a removal cannot be accomplished without a retrocession.
Now the original cession was a contract binding on both parties, ’till by mutual agreement or violation, it should be annulled. The consideration for which the exclusive legislation was granted, was the security of the National Councils from improper influences, (for if Congress were to leave the District to-morrow, the principle would not be thereby affected, they would undoubtedly require the same jurisdiction over the place they might remove to.) The condition on which this power was given, was the establishment of the seat of government in the territory ceded; remove the seat, and the condition no longer exists as to that territory. The power consequently ceases there, for the Constitution recognizes no such authority elsewhere than in the ten-miles square. Congress then in removing, give up the exclusive legislation over the district, for the cause of retaining it would vanish--causa sublata tollitur effectus.
Might not this case then happen? Congress pass a law, to remove the seat of government, without consulting Virginia or Maryland, who will not recieve the territory, on the ground that the objects of the cession have been satisfactorily answered, and, as parties to the contract they can demur to a violation of its conditions. Congress remove, and of course lose their exclusive legislation, and the parent states decline recieving the District under their authority—What then is the situation of the District? And who shall decide between the litigants? The whole subject may be presented in this form, viz, Would not a retrocession or removal, without the consent of the ceding States, violate the Constitution, by impairing the obligation of a contract? Or does a removal by Congress imply the necessity of acceptance of territory by Virginia and Maryland?
The clause now alluded to, may also, I humbly suggest, be viewed as conferring a power, which may be assumed or not at discretion–so that Washington might be the Seat of government and yet not subject to the exclusive legislation of Congress.
As a citizen of this District of Columbia, deeply interested in its prosperity, and impressed sensibly with the doubtful nature of my rights, I feel the importance of this subject, and I offer it as my apology, for the freedom with which I solicit your sentiments. I freely acknowledge, that nothing would gratify me more, than your confirmation of my views on the broad subject of Retrocession and that nothing restrains me from renewing my request on that head, with a pledge of honour to confine the communication to myself, but the reluctance you expressed in a former note. But I must be permitted to hope that you will feel no hesitation in disclosing your sentiments respecting the powers of Congress, which I have touched upon above, so very loosely & lamely. This question is not local, but involves a question of constitutional law, and appertains to the country at large. In case of its being agreable to comply with my request, your arrangement as to time, will be perfectly satisfactory to me. I so ardently desire your opinion, that I am willing to await your convenience in giving it.
I am most sincerely grateful for your favourable opinion of my unpretending essay–it has caused me not to repent having attempted it–Promising not to trouble you again I remain, with the most profound respect & veneration Your most obliged friend & servt.
RC (DLC). Docketed by JM.