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NO UNNECESSARY SACRIFICES.
To impose upon the Washingtonian hurtful discriminations in respect to his status before the national courts clearly involves an unnecessary sacrifice on his part.
Chief Justice John Marshall's treatment of the District of Columbia when the alleged rights of its citizens came in conflict with some claim of national power develops vividly these judicial discriminations.
In Hepburn & Dundas v. Elzey (2 Cranch, 445) Marshall held that the District was a State in the signification of that term in international law, but not in the sense of the Constitution, and that its citizens could not bring suit as citizens of a State in United States courts. In Loughborough v. Blake (5 Wheaton, 317) he decided that Congress has the constitutional power to impose direct taxes upon the unrepresented District, notwithstanding the words of the Constitution coupling representation and direct taxation, and notwithstanding the principle asserted in our Revolution that representation is inseparable from taxation."
John Marshall's Supreme Court treated the District as a State when taxes were imposed, but not a State when Representatives were apportioned, though the Constitution apparently couples the two things. It was declared not to be a State whose citizens can bring suit in the United States courts, though the Supreme Court at a later date announced it in the very spirit of Marshall's reasoning "a State of the Union" under a treaty with France conferring privileges on aliens. (Geofroy v. Riggs, 133 U. S., 258.) In short, the District is a State when burdens are imposed and not a State when privileges are distributed.
Marshall recognizes deprecatingly the injustice and inconsistency which on grounds of national necessity the Supreme Court, through him, dealt out to the District of Columbia. "It is," he says in Hepburn & Dundas v. Ellzey, "extraordinary that the courts of the United States, which are open to aliens and to the citizens of every State in the Union, should be closed upon them (District citizens)." And in Loughborough v. Blake he says:
Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the District, it may be doubted whether in fact its interests would be rendered thereby more secure; and certainly the Constitution does not consider their want of a representative in Congress as exempting it from equal taxation.
The Washingtonian needs access on equal terms with other Americans to the Federal courts; the same right to sue in a Federal court as that enjoyed by the citizen of a State. Either his status before the Federal courts should be that of the citizen of the nonsovereign State of Columbia, or for judicial purposes he should be declared a citizen of Maryland.
It is no longer a hopeless task to attempt amendment of the Constitution except as the aftermath of civil war. It has recently been twice amended in quick succession.
This constitutional amendment which I urge was first suggested in substance by A. B. Woodward in 1801.
Mr. CHAPIN BROWN. He was not a Member of Congress?
Mr. NOYES. No; he was not a Member of Congress.
It was advocated by me in the Star in 1888, was proposed formally in Congress by Senator Blair in 1888 and in 1889, and subsequently
was ably championed by him. It was renewed with verbal modifications by Senator Gallinger in later years, and is now in substance pushed by the special suffrage committee of the Chamber of Commerce and by other organizations of Washingtonians.
In this year of our Lord 1916 genuine American representation for the District means representation on the lines of a State, and not on the lines of a Territory. Until 1880 the District was entitled by its population only to treatment as a Territory.
The demand by Washington for Territorial representation in Jackson's time, and the Territorial representation granted it in the seventies of the last century measured up fully to the requirements of equity. No more could then be fairly asked or given. But since 1880, or certainly since 1890, the District has had the population which entitles it to voting representation in Congress. And its representation by a voteless Territorial delegate in 1916 would be as much an anachronism as full voting representation in Congress under A. B. Woodward's constitutional amendment would have been in 1801.
The same dangers must be run to secure either Territorial or State representation. Winning a Territorial delegate, the victory will be dubious, and may be converted into defeat by the hostile action of any succeeding Congress. Winning voting representatives in Congress through a constitutional amendment, the victory will be great and permanent.
Our proposed legislation destroys nothing, disturbs nothing, repeals nothing. It is supplementary to existing law, adapting the latter better to the conditions and needs of to-day. It is thoroughly constructive. It is not in the smallest particular destructive.
It leaves undisturbed and confirms the national control of the Nation's city and the corresponding national obligation of adequate financial participation in the maintenance and upbuilding of the National Capital. The "organic" act of 1878 and the exclusive legislation clause of the Constitution are alike untouched.
It makes American citizens of the people of this community, giving them effective representation in Congress, their local and national legislature, which may deprive them of their property by taxation and of life or limb by sending them to war. Such representation is not inconsistent with the exclusive power of legislation concerning the District possessed by Congress. On the contrary, such representation is the more essential since Congress is not only Washington's national legislature but its municipal and State legislature.
Senator HOLLIS. Can you state how many States there are in the Union with less population than the District of Columbia? Mr. NOYES. There are six.
FULL REPRESENTATION IN NATIONAL GOVERNMENT THE VITAL
The genuine American political birthright is not municipal selfgovernment but national representation through a Delegate in Congress when in the Territorial stage of development and through Senators and Representatives when the population, educational standards, and resources of a State have been attained.
If Washingtonians are political slaves now they will still be political slaves after they have the power to elect a voteless Delegate, or even District commissioners or any other municipal officials if the exclusive power of legislation under the constitutional provision still remains in a Congress not elected by them and in which they are not represented. Their chains may be made a little lighter and may not clank so loudly; they may be granted by kind masters a little greater freedom of movement, but they are not free. The power to take away their property, their freedom, and life itself is in others not chosen by them and to whose rule they have not assented. There is no selfgovernment when the power to tax one, to imprison one, and to send one to war is not in one's self or in those to whom one has voluntarily confided it as one's representatives.
Clearly the American birthright of which the Washingtonian has been deprived, or which, as alleged, he has sold for a mess of pottage, is not municipal self-government or participation in the municipal government. Such government existed with unsatisfactory results so far as capital upbuilding and popular contentment were concerned, during the first 70 years of the city's life, in which period the community was bemoaning and Congressmen and Presidents were commenting upon the un-American conditions of Washington and Georgetown, though enjoying municipal "self-government," sought, and Alexandria, though enjoying municipal "self-government," secured retrocession on account of their "galling disfranchisement."
REAL AND BOGUS BIRTHRIGHTS.
That the real American birthright is not municipal self-government but national representation through a Delegate in Congress when in the Territorial stage of development, and through Senators and Representatives when the population, educational standards, and resources of a State have been attained, is demonstrated by the facts and declarations that constitute Washington's political history.
The right to vote in the municipal government was possessed by Washington until 1871, when a Territorial form of government was established with the voting privilege in respect to one branch of the local legislature, and for a voteless Delegate in Congress. Since 1874 no voting for any part of the local government and no representation in the National Government have been enjoyed.
The limited privilege of voting for some or all the branches of a municipal government, operating by sufferance of Congress, though enjoyed from 1800 to 1874, was not viewed as constituting in the smallest degree the American political birthright.
As we have seen, the un-American disfranchisement of the people of the Capital, meaning thereby their exclusion from national representation, was complained of as a grievance from 1800, and from the time of the occupation of the city by the Nation in that year. It was even then proposed that the Constitution should be amended to permit the District to have one Senator and one Representative.
Senator POMERENE. Mr. Noyes, personally I shall have to be excused for a little while. I have another engagement, but I want you to proceed with your remarks and I shall be glad later on to read everything you have to say. I hope to get back in a very little while. Mr. NOYES. I thank you, Senator.
Washington was in existence only a few months when its residents began to bemoan their prospective disfranchisement, their exclusion from participation in national elections. In a pamphlet concerning the "Government of the Territory of Columbia," published in 1801 by A. B. Woodward, it is said:
This body of people is as much entitled to the enjoyment of the rights of citizenship as any other part of the people of the United States. There can exist no necessity for their disfranchisement, no necessity for them to repose on the mere generosity of their countrymen to be protected from tyranny; to mere spontaneous attention for the regulation of their interests. They are entitled to a participation in the general councils on the principles of equity and reciprocity.
And a constitutional amendment was urged giving the District one Senator as well as representation in the House. From the beginning of the century, too, Members of Congress who have viewed the condition of the Capital with other emotions than that of indifference have either "felt their hearts bleed" over the enslaved condition of the people or have denounced the disfranchised as selling their republican birthright for a mess of pottage.
In a debate in the House December, 1800, Representative Smilie
Not a man in the District would be represented in the Government, whereas every man who contributed to the support of a government ought to be represented in it; otherwise his natural rights were subverted and he was left not a citizen but a slave. It was a right which this country, when under subjection to Great Britain, thought worth making a resolute struggle for and evinced a determination to perish rather than not enjoy.
In 1803 the "unrepublican" condition of the District was again a matter of comment, and it was proposed to recede to Maryland and Virginia jurisdiction over the parts of the District originally ceded by them. John Randolph, jr., in February of that year, said in the House:
I could wish, indeed, to see the people within this District restored to their rights. This species of government is an experiment how far freeman can be reconciled to live without rights; an experiment dangerous to the liberties of these States. But in as much as it had been already made, in as much as I was not accessory to it, and as at some future time its deleterious effects may be arrested, I am disposed to vote against the resolution.
A proposition to recede the territory of Columbia outside of the limits of Washington caused Representative Clark to say, in 1805, that he spoke of the inhabitants whenever he had occasion to allude to them with pity and compassion, and he most devoutly wished to see them placed in a condition more congenial to his own feelings and the feelings of every true lover of civil and political freedom. Alexandria was retroceded in 1846, her "galling disfranchisement" being referred to in debate. Georgetown had sought retrocession in 1838, but unsuccessfully.
During all these years Washington, as well as Georgetown and Alexandria, had been voting in their respective municipal govern
VIEWS OF THE PRESIDENTS.
The first President to discuss formally the political status of the District was Monroe, who, in his message of 1818, said:
By the Constitution the power of legislation is exclusively vested in the Congress of the United States. In the exercise of this power, in which the people have no
participation, Congress legislates in all cases directly on the local concerns of the District. As this is a departure for a special purpose from the general principles of our system, it may merit consideration whether an arrangement better adapted to the principles of our government and to the particular interests of the people may not be devised which will neither infringe the Constitution not affect the object which the provision in question was intended to secure.
Thus in 1818 President Monroe suggested as alternatives either a separate legislature for the District or some device under which the District should be represented in Congress.
In 1818 Washington, Georgetown, and Alexandria were enjoying, by grace of Congress, municipal "self-government.' Washington, for instance, elected city councils, who elected a mayor. Nonparticipation by the people in the congressional power of exclusive legislation was the "departure from the general principles" of the American system, of which Monroe suggested a correction.
Andrew Jackson was the first President to urge specifically the election by the District of a territorial delegate in Congress. made this recommendation in 1830 and repeated and enlarged it in 1831 and 1835. In 1831 he said:
It was doubtless wise in the framers of our Constitution to place the people of this District under the jurisdiction of the General Government. But to accomplish the objects they had in view it is not necessary that this people should be deprived of all the privileges of self-government. Independently of the difficulty of inducing the representatives of distant States to turn their attention to projects of laws which are not of the highest interest to their constituents, they are not individually nor in Congress collectively well qualified to legislate over the local concerns of this District. Consequently its interests are much neglected and the people are almost afraid to present their grievances lest a body in which they are not represented, and which feels little sympathy in their local relations, should in its attempt to make laws for them do more harm than good. * * * Is it not just to allow them at least a delegate to Congress if not a local legislature to make laws for the District subject to the approval or rejection of Congress? I earnestly recommend the extension to them of every political right which their interests require and which may be compatible with the Constitution.
President William Henry Harrison in 1841 discussed the political status of the District sympathetically and earnestly, saying:
Are there indeed citizens of any of our States who have dreamed of their subjects in the District of Columbia? Such dreams can never be realized by any agency of mine. The people of the District of Columbia are not the subjects of the people of the United States, but free American citizens. Being in the latter condition when the Constitution was formed, no words used in that instrument could have been intended to deprive them of that character. If there is anything in the great principle of inalienable rights so emphatically insisted upon in our Declaration of Independence they could neither make, nor the United States accept, a surrender of their liberty and become the subjects-in other words the slaves-of their former fellow citizens. If this be trueand it will scarcely be denied by anyone who has a correct idea of his own right as an American citizen-the grant to Congress of exclusive jurisdiction in the District of Columbia can be interpreted so far as respects the aggregate people of the United States as meaning nothing more than to allow to Congress the controlling power necessary to accord a free and safe exercise of the functions assigned to the General Government by the Constitution. In all other respects the legislation of Congress should be adapted to their peculiar position and wants and be conformable with their deliberate opinions of their own interests.
President Andrew Johnson repeated in 1866 Jackson's recommendation of a Territorial Delegate in Congress, saying:
Our fellow citizens residing in the District, whose interests are thus confided to the special guardianship of Congress, exceed in number the population of several of our Territories, and no just reason is perceived why a Delegate of their choice should not be admitted to a seat in the House of Representatives. No move seems so appropriate