V. 1827–1829
GREAT INCREASE OF GENERAL JACKSON’S POPULARITY—“RETRENCHMENT” MADE A POLITICAL CRY—DEBATE ON THE TARIFF—BUCHANAN ON INTERNAL IMPROVEMENTS—THE INTERESTS OF NAVIGATION—THE CUMBERLAND ROAD AGAIN DISCUSSED—INELIGIBILITY OF A PRESIDENT.
The 20th Congress, which assembled in December, 1827, opened with a great increase in the forces of the opposition. The elections in the autumn of 1826 evinced an extraordinary growth of General Jackson’s popularity. Mr. Adams found himself in a minority in both branches of Congress. In the House, the opponents of his administration numbered 111 members, its friends 94. It is quite probable, however, that but for the indiscretion of certain members who have ranked as friends of the administration, the angry and criminating discussion of the subject of “retrenchment,” which was deprecated by the wisest men of the opposition, but into which they were forced, would not have occurred. It was precipitated by the defiant attitude of two or three members who should have allowed the cool leaders of the opposition to strangle it, as they were at first disposed to do. But once commenced, it drew into bitter strife the excited elements of party and personal warfare, and went on through nearly a whole session with little credit to some who participated in it, but in the end to the great and not altogether just damage of the administration.
It happened that on the 22d of January (1828) a member from Kentucky, Mr. Chilton, an earnest “Jackson man,” who had formerly been a clergyman but was now a politician, introduced in the House certain resolutions instructing the Committee of Ways and Means to report what offices could be abolished, what salaries reduced, and other modes of curtailing the expenses of the government. It is apparent that this could not have been a step taken by concert with the leaders of the opposition. A party that was daily growing in strength, and that was almost morally certain to overthrow the party of the administration, and to elect the next President, could have had no motive for shackling themselves with a legislative measure reducing the number of offices or the salaries of the officers that must be retained. They could not know in advance how they could carry on the government, and it would be mere folly for them to put laws on the statute-book framed while they were not charged with the duties of administration, and suggested only as a topic for exciting popular discontent against those who were responsible neither for the existing number of offices nor for the salaries paid to them. “Retrenchment,” as a popular cry, was not a movement which the leading men of the opposition in the House of Representatives either needed or desired to initiate. Mr. McDuffie, the chairman of the Committee of Ways and Means, and a vehement opponent of the administration, objected to Mr. Chilton’s resolutions at the outset. So did Mr. Buchanan; and the latter often said, in subsequent years, that they would have been crushed out of all consideration, if the friends of the administration had left them in the hands of its opponents. They were moved by an inconsiderable member, who was one of the stragglers of the opposition forces, and they were met by administration members who were about equally inconsiderable, in a tone of challenge and defiance. In vain did Mr. McDuffie and Mr. Buchanan contend that the present was no time to discuss the expenditures of the government. In vain did the most considerable and important friends of the administration deprecate an unprofitable, intolerant, and useless debate. The mover of the resolutions would not be silenced, and the few indiscreet supporters of the administration, who demanded that their discussion should go on, would not permit them to receive their proper quietus by the application of “the previous question.” Never was a deliberative body drawn, in spite of the unwillingness of its best members on both sides, into a more unseemly and profitless discussion.
Among the friends of General Jackson who deprecated and endeavored to put a stop to this discussion was Mr. Edward Livingston of Louisiana, the oldest member of the House, and a person of great distinction. He made an earnest appeal to the House to end the whole matter by referring the resolutions to a committee without further debate. This was not acceded to by the friends of the administration, who wished to continue the discussion. Mr. Edward Everett, then a young member from Massachusetts, moved an adjournment after Mr. Livingston’s effort to terminate the whole discussion, in order to make a speech, which he delivered on the 1st of February. Mr. Buchanan said in reply to him: “This debate would have ended on Thursday last, after the solemn appeal for that purpose, which was made to the House by the venerable gentleman from Louisiana, had not the gentleman from Massachusetts himself prevented it by moving an adjournment. That gentleman ought to know that he can never throw himself into any debate without giving it fresh vigor and importance.”
In the course of this speech, Mr. Buchanan made some allusion to the alleged “bargain and corruption” by which Mr. Adams had been made President; and he thus touched upon the only important consideration that could be said to belong to the circumstances of that election:
“Before, however, I commence my reply to that gentleman, I beg leave to make a few observations on the last Presidential election. I shall purposely pass over every charge which has been made, that it was accomplished by bargain and sale or by actual corruption. If that were the case, I have no knowledge of the fact, and shall therefore say nothing about it. I shall argue this question as though no such charges had ever been made. So far as it regards the conduct which the people of the United States ought to pursue, at the approaching election, I agree entirely with the eloquent gentleman from Virginia [Mr. Randolph] (I cannot with propriety call him my friend), that it can make no difference whether a bargain existed or not. Nay, in some aspects in which the subject may be viewed, the danger to the people would be the greater, if no corruption had existed. It is true, that this circumstance ought greatly to influence our individual opinions of the men who now wield the destinies of the Republic; but yet the precedent would be at least equally dangerous in the one case as in the other. If flagrant and gross corruption had existed, every honest man would start from it with instinctive horror, and the people would indignantly hurl those men from the seats of power, who had thus betrayed their dearest interests. If the election were pure, there is, therefore, the greater danger in the precedent. I believe, in my soul, that the precedent which was established at the last Presidential election, ought to be reversed by the people, and this is one of my principal reasons for opposing the re-election of the present Chief Magistrate.
“Let us examine this subject more closely. General Jackson was returned by the people of this country to the House of Representatives, with a plurality of electoral votes. The distinguished individual who is now the Secretary of State, was then the Speaker of this House. It is perfectly well known, that, without his vote and influence, Mr. Adams could not have been elected President. After the election, we beheld that distinguished individual, and no man in the United States witnessed the spectacle with more regret than I did, descending—yes, Sir, I say descending—from the elevated station which you now occupy, into the cabinet of the President whom he had elected.
“‘Quantum mutatus ab illo.’
“In the midnight of danger, during the darkest period of the late war, ‘his thrilling trump had cheered the land.’ Although among the great men of that day there was no acknowledged leader upon this floor, yet I have been informed, upon the best authority, that he was ‘primus inter pares.’ I did wish, at a future time, to see him elevated still higher. I am one of the last men in the country who could triumph over his fallen fortunes. Should he ever return to what I believe to be correct political principles, I shall willingly fight in the same ranks with him as a companion—nay, after a short probation, I should willingly acknowledge him as a leader. What brilliant prospects has that man not sacrificed!
“This precedent, should it be confirmed by the people at the next election, will be one of most dangerous character to the Republic. The election of President must, I fear, often devolve upon this House. We have but little reason to expect that any amendment, in relation to this subject, will be made to the Constitution in our day. There are so many conflicting interests to reconcile, so many powers to balance, that, when we consider the large majority in each branch of Congress, and the still larger majority of States, required to amend the Constitution, the prospect of any change is almost hopeless. I believe it will long remain just as it is. What an example, then, will this precedent, in the pure age of the Republic, present to future times! The people owe it to themselves, if the election must devolve upon this House, never to sanction the principle that one of its members may accept, from the person whom he has elected, any high office, much less the highest in his gift. Such a principle, if once established, must, in the end, destroy the purity of this House, and convert it into a corrupt electoral vote. If the individual to whom I have alluded, could elect a President and receive from him the office of Secretary of State from the purest motives, other men may, and hereafter will, pursue the same policy from the most corrupt. ‘If they do these things in the green tree, what shall be done in the dry?’
“This precedent will become a cover under which future bargains and corrupt combinations will be sanctioned, under which the spirit of the Constitution will be sacrificed to its letter.”
It is not needful to describe the topics of this discussion. Mr. Chilton’s resolutions, after being somewhat amended, were sent to a Select Committee on Retrenchment. The result was a majority and a minority report, of which six thousand copies were printed and circulated through the country. I turn from this subject to matters of more importance.
Mr. Buchanan’s position in this Congress required him to exert his powers as a debater more than ever before. The House of Representatives was at this time a body in which real debate was carried on upon some subjects, however the discussion on “retrenchment” may be characterized. Its discussions on the tariff, commencing on the 4th of March and terminating on the 15th of May, were conducted with great ability. Among the best speeches on the tariff bill of this session, there is one by Mr. Peleg Sprague of Maine, and one by Mr. Buchanan. Both exhibit a great deal of research. Mr. Buchanan’s speech, begun in Committee of the Whole on the 2d of April, in answer to Mr. Sprague, is an excellent specimen of business debate. The details on which these two gentlemen differed, and on which the debate between them and others chiefly turned, are of little interest now; nor does any tariff debate afford much development of permanent principles. So varying are the circumstances which from time to time give rise to an application of the doctrines that are indicated by the terms “free-trade” and “protection.” Still there may be found in this tariff speech of Mr. Buchanan, matter which is of some interest in his personal history as an American statesman, because it shows that he had now risen to the rank of a statesman, and because it gives his general views of what had at this time become known as “the American System.”
Mr. Buchanan, on this occasion, felt that he was combating a disposition to favor certain interests at the expense of others. In the debate on the tariff of 1824, when Mr. Clay developed his views on the subject of protection, and Mr. Webster found fault with the details of a measure which he said could not be properly characterized as an American System, Mr. Buchanan had shown that while he was ready to accede to a tariff for the incidental protection of our own manufactures, he was not disposed to carry the doctrines of protection so far as to injure the agricultural classes; but that in imposing the duties necessary to defray the expenses of the government, he should take care to benefit indirectly both the manufacturing and the producing interests. In 1828 the proposed alterations of the tariff aimed at a more uniform operation of the customs duties upon all the great interests of the country. A motion made by Mr. Sprague, to strike from the bill an additional duty of five cents per gallon on molasses, and twenty-five dollars per ton on hemp, led to a discussion on the navigating interests, as affected by such an amendment, and the whole subject of what was meant by protection and “the American system” came up afresh. The following extracts from Mr. Buchanan’s speech afford fair specimens of his manner of dealing with this subject:
I shall cheerfully submit to the public judgment whether the bill, although I dislike the minimum principle which it contains, does not afford sufficient protection to the manufacturers of woolens. I think it does; but I wish to be distinctly understood, in relation to myself, that I always stand ready, in a fair spirit, to do everything in my power to promote the passage of a just and judicious tariff, which shall be adequate for their protection; and that, for the sake of conciliation, and to effect this purpose, I am willing to sacrifice individual opinion to a considerable extent.
What, Sir, is the American System? Is it the system advocated by the gentleman from Maine, which would build up one species of domestic industry at the expense of all the rest, which would establish a prohibition and consequent monopoly in favor of the woolen manufacturer whilst it denied all protection to the farmer? Certainly not. The American System consists in affording equal and just legislative protection to all the great interests of the country. It is no respecter of persons. It does not distinguish between the farmer who plows the soil in Pennsylvania and the manufacturer of wool in New England. Being impartial, it embraces all. There is, in one respect, a striking difference between the farmer, the merchant, and the manufacturer. The farmer eating the bread of toil, but of independence, scarcely ever complains. If he suffers, he suffers in silence; you rarely hear him, upon this floor, asking redress for his grievances. He relies with that confidence which belongs to his character upon the justice of his country, and does not come here with importunate demands. The case is different in regard to the manufacturer and the merchant. When they feel themselves aggrieved—when they require the aid of your legislation, then complaints ring throughout the country, from Georgia to Maine. They never cease to ask, until they obtain. And shall this contented and uncomplaining disposition of the great agricultural interest, be used as an argument upon this floor against affording it relief? I trust not.
The gentleman from Maine has shown himself to be a true disciple of the Harrisburg Convention School. Even that convention, although the chief objects of their regard appeared to be wool and woolens, recommended further protection to iron, hemp, flax, and the articles manufactured from them, and to domestic distilled spirits. The gentleman from Maine has moved to strike from the bill additional duties which it proposes upon the importation of foreign hemp and molasses; and in his speech, he has argued against any additional duties either upon iron, or steel, or flax, or foreign spirits. In his opinion, therefore, the American System can embrace no other interest except that of the growers and manufacturers of wool.
[Here Mr. Sprague explained. He said his observations upon the other items, besides those he had moved to strike from the bill, were only intended to illustrate what would be their effect on the navigating interest.]
Mr. Buchanan resumed. I perceive, from the gentleman’s explanation, I did not misunderstand his argument. If this be the American System, I should like to know it as soon as possible; for then I shall be opposed to it. I venture to assert that, if those with whom the gentleman from Maine usually acts upon this floor have embraced the opinions which he has avowed, it is a vain, a culpable waste of time to proceed further with this discussion. Let the bill at once go to the tomb of all the Capulets. If the New England manufacturer must be protected, whilst the Pennsylvania farmer is abandoned—if this be the American System, instead of being a mourner at its funeral, I shall rejoice that it has met the fate which it deserved, and has been consigned to an early grave.
The Legislature of Pennsylvania has given us what, in my opinion, is the correct version of the American System. They have declared that “the best interests of our country demand that every possible exertion should be made to procure the passage of an act of Congress imposing such duties as will enable our manufacturers to enter into fair competition with foreign manufacturers, and protect the farmer, the growers of hemp and wool, and the distiller of spirits from domestic materials, against foreign competition. The people of Pennsylvania do not ask for such a tariff as would secure to any one class, or to any section of the country, a monopoly. They want a system of protection which will extend its blessings, as well as its burdens, as equally as possible over every part of the Union; to be uniform in its operation upon the rich as well as the poor.” They have therefore instructed their Senators, and requested their Representatives, “to procure, if practicable, the establishment of such a tariff as will afford additional protection to our domestic manufactures, especially of woolen and fine cotton goods, glass, and such other articles as, in their opinion, require the attention of Congress, so as to enable our citizens fairly to compete with foreign enterprise, capital, and experience, and give encouragement to the citizens of the grain-growing States, by laying an additional duty upon the importation of foreign spirits, flax, china ware, hemp, wool, and bar iron.”
This resolution speaks a language which I am proud to hear from the Legislature of my native State.
If it be the disposition of a majority of the members of this committee to strike out of the bill iron, hemp, foreign spirits and molasses, no Representative from the State of Pennsylvania, who regards either the interest or the wishes of his constituents, will dare to vote for what would then remain. The time has forever past when such a measure could have received our sanction. We shall have no more exclusive tariffs for the benefit of any one portion of the Union. The tariff of 1824 partook much of this character; it contained no additional duty on foreign spirits or molasses, and only added five dollars per ton to the duty on foreign hemp. So far as the grain-growing States expected to derive peculiar benefits from that measure, they have been, in a great degree, disappointed.
What was the course which gentlemen pursued in relation to the woolen bill of the last session? I endeavored to introduce into it a small protection for our hemp and domestic spirits. We were then told that my attempt would endanger the fate of the bill; that the period of the session was too late to introduce amendments; and that if we would then extend protection to the manufacturers of wool, a similar protection should, at a future time, be extended to the agricultural interest of the grain-growing States. My respectable colleague [Mr. Forward] has informed the committee that he voted for the bill of the last session under that delusion. How sadly the picture is now reversed! When an interest in New England, which has been estimated at 40,000,000 of dollars, is at stake, and is now about to sink, as has been alleged, for want of adequate protection, it seems that gentlemen from that portion of the Union would rather consign it to inevitable destruction than yield the protection which the present bill will afford to the productions of the Middle and Western States. If they are prepared to act upon a policy so selfish, let them at once declare it, and not waste weeks upon a bill which can never become a law.
The gentleman from Maine endeavored to sustain his motives by attempting to prove that, if the duties proposed by the bill should be imposed upon hemp and molasses, it would injure, nay, probably destroy the navigation of the country. Indeed he pronounced its epitaph. It is gone! Five cents per gallon upon molasses, and twenty-five dollars per ton upon hemp will sink our navigating interest; will sweep our vessels from the ocean! When I compare the storm of eloquence and of argument which the gentleman has employed to strike out hemp and molasses from this bill, with the object to be attained, he reminded me—
“Of ocean into tempest tost To waft a feather or to drown a fly.”
An additional duty of five cents per gallon on molasses and twenty-five dollars per ton upon hemp will consign the navigation of the country to inevitable and almost immediate destruction! This is the kind of argument which the gentleman has thought proper to address to the committee.
The gentleman from Maine has said that our navigation goes abroad unprotected to struggle against the world; and he has expatiated at length upon this part of the subject. I trust I shall be able to prove, without fatiguing the committee, that no interest belonging to this or any other country ever received a more continued or a more efficient protection than the navigation of the United States. I heartily approve this policy. I would not, if I could, withdraw from it an atom of the protection which it now enjoys. I shall never attempt to array the great and leading interests of the country against each other. I am neither the exclusive advocate of commerce, of manufactures, or of agriculture. The American System embraces them all. I am the advocate of all. When, therefore, I attempt to show to the committee the protection which has been extended by this government to its navigation, I do it in reply to the argument of the gentleman from Maine, and not in a spirit of hostility to that important interest.
Mr. Buchanan then entered upon an elaborate historical examination of the care for the interests of our navigation that had been exerted by Congress from 1789 to the time when he was speaking.[23] On the subject of the navy, as likely to be affected by measures that were complained of for a tendency to depress the commercial marine, he said:
“The gentleman from Maine has used a most astonishing argument against any further protection to hemp and flax and iron. We ought not further to encourage our farmers to grow flax and hemp, nor our manufacturers to produce iron. And why? Because you will thus deprive the navigating interest of the freight which they earn, by carrying these articles from Russia to this country. Can the gentleman be serious in contending that, for the sake of affording freight to the ship-owners, we ought to depend upon a foreign country for a supply of these articles? This argument strikes at the root of the whole American System. Upon the same principle we ought not to manufacture any article whatever at home, because this will deprive our ships of the carriage of it from abroad. This principle, had it been adopted in practice, would have left us where we were at the close of the American Revolution. We should still have been dependent upon foreign nations for articles of the first necessity. This argument amounts to a proclamation of war, by our navigation, against the agriculture and manufactures of the country. You must not produce, because we will then lose the carriage, is the sum and substance of the argument. Am I then to be seriously told, that for the purpose of encouraging our ship-owners, our farmers ought to be deprived of the markets of their own country, for those agricultural productions which they can supply in abundance? I did not expect to have heard such an argument upon this floor.
“By encouraging domestic industry, whether it be applied to agriculture or manufactures, you promote the best interests of your navigation. You furnish it with domestic exports to scatter over the world. This is the true American System. It protects all interests; it abandons none. It never arrays one against another. Upon the principles of the gentleman, we ought to sacrifice all the other interests of the country to promote our navigation. This is asking too much.
“The gentleman from Maine seems to apprehend great danger to the navy from the passage of this bill. He appears to think it will fall with so much oppression upon our navigation and fisheries, that these nurseries of seamen for the navy may be greatly injured, if not altogether destroyed.
“In regard to the value and importance of a navy to this country, I cordially agree with the gentleman from Maine. Every prejudice of my youth was enlisted in its favor, and the judgment of riper years has strengthened and confirmed those early impressions. It is the surest bond of our Union. The Western States have a right to demand from this government that the mouth of the Mississippi shall be kept open, both in war and in peace. If you should not afford them a free passage to the ocean, you cannot expect to retain them in the Union; they are, therefore, as much, if not more, interested in cherishing the navy than any other portion of the Republic. The feeling in its favor contains in it nothing sectional—it is general. We are all interested in its preservation and extension. Unlike standing armies, a navy never did, nor ever will, destroy the liberties of any country. It is our most efficient and least dangerous arm of defence.
“To what, then, does the argument of the gentleman lead? Although iron, and hemp, and flax, and their manufactures, are essential to the very existence of a navy, yet he would make us dependent for them upon the will of the Emperor of Russia, or the King of Sweden. A statesman would as soon think of being dependent on a foreign nation for gunpowder, or cannon, or cannon-balls, or muskets, as he would for the supply of iron, or flax, or hemp, for our navy. Even if these articles could not be produced as cheaply in this as in other countries, upon great national principles, then domestic production ought to be encouraged, even if it did tax the community. They are absolutely necessary for our defence. Without them, what would become of you, if engaged in war with a great naval power? You would then be as helpless as if you were deprived of gunpowder or of cannon. Without them, your navy would be perfectly useless. Shall we, then, in a country calculated by nature above all others for their production, refuse to lend them a helping hand? I trust not.
“The gentleman from Maine has said much about our fisheries, and the injurious effects which the present bill will have upon them. From this argument, I was induced again to read the bill, supposing that it might possibly contain some latent provision, hostile to the fisheries, which I had not been able to detect. Indeed, one might have supposed, judging merely from the remarks of the gentleman, without a reference to the bill, that it aimed a deadly blow against this valuable branch of our national industry. I could find nothing in it, which even touched the fisheries. They have ever been special favorites of our legislation. I shall not pretend to enumerate, because the task might seem invidious, the different acts of Congress affording them protection. They are numerous. The gentleman has, in my opinion, been very unfortunate in his complaints that they have not been sufficiently protected. From the origin of this government, they have been cherished, in every possible manner, by our legislation. For their benefit we have adopted a system of prohibitions, of drawbacks, and of bounties, unknown to our laws in relation to any other subject. They have grown into national importance, and have become a great interest of the country. They should continue to be cherished, because they are the best nurseries of our seamen. I would not withdraw from them an atom of the protection which they have received; on the contrary, I should cheerfully vote them new bounties, if new bounties were necessary to sustain them. They are the very last interest in the country which ought to complain.
“The gentleman, whilst he strenuously opposed any additional protection to domestic iron, and domestic hemp, surely could not have remembered, that the productions of the fisheries enjoy a monopoly of the home market. The duties in their favor are so high as to exclude foreign competition. We do not ask such prohibitory duties upon foreign iron, flax, or hemp. We demand but a moderate increase; and yet the fisheries, which are protected by prohibitory duties, meet us and deny to us this reasonable request.”
That Mr. Buchanan’s opposition to the administration of Mr. John Quincy Adams was not carried on in the spirit of a partisan is evinced by his action on an appropriation asked for to enable the Executive to continue and complete a system of surveys, preparatory to a general plan of internal improvements. There was much opposition to this appropriation, especially on the part of those who denied the power of the General Government to make such public works as were then classed as “internal improvements.” Mr. Buchanan met their objections as follows:
Mr. Buchanan expressed his dissent from the opinions avowed by the two gentlemen who had preceded him. The true question ought to be distinctly stated. The act of 1824 sanctioned the policy, not of immediately entering upon a plan of internal improvement, but of preparing for it, by obtaining surveys, plans, and estimates in relation to the various roads and canals that were required throughout the country. The sum of $30,000 had been appropriated, not for a single year, but for a specific purpose, which purpose had not yet been accomplished. Many surveys were now in progress, which were not more than half completed, and the question was whether the House would withdraw the means of completing them. A discussion of the general policy of the plan was out of place on an appropriation bill. Whatever might be decided as to carrying such a system of internal improvement into effect, these surveys were of great advantage to the American people. Should that system never be adopted, this mass of information could not fail to be useful. The constitutional question of power did not fairly arise on a proposal to employ the engineers already at the disposal of the War Department, in a particular manner.
Should the time ever arrive when we have more in the Treasury than we know what to do with, the argument of the gentleman from Virginia [Mr. Barbour] might have some force. But the question now was, whether the House would arrest these surveys? Mr. B., for one, would not do it. He would give the administration the sum now asked, and would hold them responsible for its application.
There is no more interesting part of Mr. Buchanan’s early Congressional career than his course on the subject of the Cumberland Road. We have seen that when he first had occasion to act on this subject as a member of Congress, he was inclined to accept the doctrine that Congress had power to establish this road, and to levy tolls for its support. But he had not then closely examined this subject. Mr. Monroe’s message vetoing the Cumberland Road bill of 1822 produced in Mr. Buchanan’s mind a decided change. At a subsequent session, he endeavored, but without success, to have the road retroceded to the States through which it passed, on condition that they would support it by levying tolls.[24] In 1828–29 he renewed this effort, and on the 29th of January, 1829, he made an elaborate speech upon the whole subject, which is of sufficient interest and importance to warrant its reproduction entire. As a constitutional argument it is valuable; and for its independent attitude towards the people of his own State, it is exceedingly creditable to him as a public man.
Mr. Buchanan said that the bill and the amendment now before the committee presented a subject for discussion of the deepest interest to the American people. It is not a question (said Mr. B.) whether we shall keep the road in repair by appropriations; nor whether we shall expend other millions in constructing other Cumberland roads—these would be comparatively unimportant; but it is a question upon the determination of which, in my humble judgment, depend the continued existence of the Federal Constitution in anything like its native purity. Let it once be established that the Federal Government can enter the dominion of the States; interfere with their domestic concerns; erect toll-gates over all the military, commercial, and post-roads within their territories, and define and punish, by laws of Congress, in the courts of the United States, offences committed upon these roads,—and the barriers which were erected by our ancestors with so much care, between Federal and State power, are entirely prostrated. This single act would, in itself, be a longer stride towards consolidation than the Federal Government have ever made; and it would be a precedent for establishing a construction for the Federal Constitution so vague and so indefinite, that it might be made to mean anything or nothing.
It is not my purpose, upon the present occasion, again to agitate the questions which have so often been discussed in this House, as to the powers of Congress in regard to internal improvements. For my own part, I cheerfully accord to the Federal Government the power of subscribing stock, in companies incorporated by the State, for the purpose of making roads and canals; and I entertain no doubt whatever but that we can, under the Constitution, appropriate the money of our constituents directly to the construction of internal improvements, with the consent of the States through which they may pass. These powers I shall ever be willing to exercise, upon all proper occasions. But I shall never be driven to support any road, or any canal, which my judgment disapproves, by a fear of the senseless clamor which is always attempted to be raised against members upon this floor, as enemies to internal improvement, who dare to vote against any measure which the Committee on Roads and Canals think proper to bring before this House. It was my intention to discuss the power of Congress to pass the bill, and its policy, separately. Upon reflection I find these subjects are so intimately blended, they cannot be separated. I shall therefore consider them together.
“Before, however, I enter upon the subject, it will be necessary to present a short historical sketch of the Cumberland Road. It owes its origin to a compact between the State of Ohio and the United States. In 1802, Congress proposed to the convention which formed the constitution of Ohio, that they would grant to that State one section of land to each township, for the use of schools; that they would also grant to it several tracts of land on which there were salt springs; and that five per cent. of the net proceeds of the future sale of public lands within its territory should be applied to the purpose of making public roads, ‘leading from the navigable waters emptying into the Atlantic to the Ohio, to the said State, and through the same.’ The act, however, distinctly declares that such roads shall be laid out under the authority of Congress, ‘with the consent of the several States through which the road shall pass.’ These terms were offered by Congress, to the State of Ohio, provided she would exempt, by an irrevocable ordinance, all the land which should be sold by the United States within her territory, from every species of taxation, for the space of five years, after the day of sale. This proposition of Congress was accepted by the State of Ohio, and it thus became a compact, the terms of which could not be changed without the consent of both the contracting parties. By the terms of the compact, this five per cent. of the net proceeds of the sales of the public land was applicable to two objects; the first, the construction of roads leading from the Atlantic to the State of Ohio; and the second, the construction of roads within that State. In 1803, Congress, at the request of Ohio, apportioned this fund between these two objects. Three of the five per cent. was appropriated to the construction of roads within the State, leaving only two per cent. applicable to roads leading from the navigable waters of the Atlantic to it.
“In March, 1806, Congress determined to apply this two per cent. fund to the object for which it was destined, and passed ‘an act to regulate the laying out and making of a road from Cumberland, in the State of Maryland, to the State of Ohio.’ Under the provisions of this act, before the President could proceed to cut a single tree upon the route of the road, it was made necessary to obtain the consent of the States through which it passed. The Federal Government asked Maryland, Pennsylvania and Virginia for permission to make it, and each of them granted this privilege in the same manner that they would have done to a private individual, or to a corporation created by their own laws. Congress, at that day, asserted no other right than a mere power to appropriate the money of their constituents to the construction of this road, after the consent of these States should be obtained. The idea of a sovereign power in this government to make the road, and to exercise jurisdiction over it, for the purpose of keeping it in repair, does not, then, appear to have ever entered the imagination of the warmest advocate for Federal power. The federalism of that day would have shrunk with horror from such a spectre. There is a circumstance worthy of remark in the act of the Legislature of Pennsylvania, which was passed in April, 1807, authorizing the President of the United States to open this road. It grants this power upon condition that the road should pass through Uniontown and Washington, if practicable. The grant was accepted upon this condition, and the road was constructed. Its length is one hundred and thirty miles, and its construction and repairs have cost the United States one million seven hundred and sixty-six thousand one hundred and sixty-six dollars and thirty-eight cents; whilst the two per cent. fund which we had bound ourselves to apply to this purpose, amounted, on the 30th of June, 1822, the date of the last official statement within my knowledge, only to the sum of one hundred and eighty-seven thousand seven hundred and eighty-six dollars and thirty-one cents, less than one-ninth of the cost of the road. This road has cost the United States more than thirteen thousand five hundred dollars per mile. This extravagant expenditure shows conclusively that it is much more politic for us to enlist individual interest in the cause of Internal Improvement, by subscribing stock, than to become ourselves sole proprietors. Any government, unless under extraordinary circumstances, will pay one-third more for constructing a road or canal, than would be expended by individuals in accomplishing the same object.
“I shall now proceed to the argument. Upon a review of this brief history, what is the conclusion at which we must arrive? That this road was made by the United States, as a mere proprietor, to carry into effect a contract with the State of Ohio, and not as a sovereign. In its construction, the Federal Government proceeded as any corporation or private individual would have done. We asked the States for permission to make the road through the territories over which their sovereign authority extended. After that permission had been obtained, we appropriated the money and constructed the road. The State of Pennsylvania even annexed a condition to her grant, with which the United States complied. She also conferred upon the agents of the United States the power of taking materials for the construction and repair of this road, without the consent of the owner, making a just compensation therefor. This compensation was to be ascertained under the laws of the State, and not under those of the United States. The mode of proceeding to assess damages in such cases against the United States was precisely the same as it is against corporations, created by her own laws, for the purpose of constructing roads.
“What, then, does this precedent establish? Simply, that the United States may appropriate money for the construction of a road through the territories of a State, with its consent; and I do not entertain the least doubt but that we possess this power. What does the present bill propose? To change the character which the United States has hitherto sustained, in relation to this road, from that of a simple proprietor to a sovereign. To declare to the nation, that, although they had to ask the States of Maryland, Pennsylvania and Virginia, for permission to make the road, now, after it is completed, they will exercise jurisdiction over it, and collect tolls upon it, under the authority of their own laws, for the purpose of keeping it in repair. We will not ask the States to erect toll-gates for us. We are determined to exercise that power ourselves. The Federal Government first introduced itself into the States as a friend, by permission; it now wishes to hold possession as a sovereign, by power. This road was made in the manner that one independent sovereign would construct a road through the territories of another. Had Virginia been a party to the compact with Ohio, instead of the United States, she would have asked the permission of Maryland and Pennsylvania to construct the Cumberland Road through their territories, and it would have been granted. But what would have been our astonishment, after this permission, had Virginia attempted to assume jurisdiction over the road in Pennsylvania, to erect toll-gates upon it under the authority of her own laws, and to punish offenders against these laws in her own courts. Yet the two cases are nearly parallel.
The right to demand toll, and to stop and punish passengers for refusing to pay it, is emphatically a sovereign right, and has ever been so considered amongst civilized nations. The power to erect toll-gates necessarily implies, 1st, The stoppage of the passenger until he shall pay the toll; 2d, His trial and punishment, if he should, either by force or by fraud, evade, or attempt to evade, its payment; 3d, A discretionary power as to the amount of toll; 4th, The trial and punishment of persons who may wilfully injure the road, or violate the police established upon it. These powers are necessarily implied. Without the exercise of them, you could not proceed with safety to collect the toll for a single day. Other powers will soon be exercised. If you compel passengers to pay toll, the power of protecting them whilst travelling along your road is almost a necessary incident. The sovereign, who receives the toll, ought naturally to possess the power of protecting him who pays it. To vest the power of demanding toll in one sovereign, and the protection of the traveller’s person in another, would be almost an absurdity. The Federal Government would probably, ere long, exercise the power of trying and punishing murders and robberies, and all other offences committed upon the road. To what jurisdiction would the trial and punishment of these offences necessarily belong? To the courts of the United States, and to them alone. In Ohio, in New York, in Virginia, and in Maryland, it has been determined that State courts, even if Congress should confer it, have no jurisdiction over any penal action, or criminal offence, against the laws of the United States. Even if these decisions were incorrect, still it has never been seriously contended that State courts were bound to take jurisdiction in such cases. It must be admitted, by all, that Congress have not the power to compel an execution of their criminal or penal laws by the courts of the States. This is sufficient for my argument. Even if the power existed, in State courts, they never ought, unless upon extraordinary occasions, to try and to punish offences committed against the United States. The peace and the harmony of the people of this country require that the powers of the two governments should never be blended. The dividing line between their separate jurisdictions should be clearly marked; otherwise dangerous collisions between them must be the inevitable consequence. In two of the States through which this road passes, it has already been determined that their courts cannot take jurisdiction over offences committed against the laws of Congress. What, then, is the inevitable consequence? All the penal enactments of this bill, or of the future bills which it will become necessary to pass to supply its defects, must be carried into execution by the Federal courts. Any citizen of the United States, charged with the most trifling offence against the police of this road, must be dragged for trial to the Federal court of that State within whose jurisdiction it is alleged to have been committed. If committed in Maryland, the trial must take place in Baltimore; if in Pennsylvania, at Clarksburg.
The distance of one hundred or two hundred miles, which he would be compelled to travel to take his trial, and the expenses which he must necessarily incur, would, in themselves, be a severe punishment for a more aggravated offence. Besides, the people of the neighborhood would be harassed in attending as witnesses at such a great distance from their places of abode. These, and many other inconveniences, which I shall not enumerate, would soon compel Congress to authorize the appointment of justices of the peace, or some other inferior tribunals, along the whole extent of the Cumberland Road.
Can any man lay his hand upon his heart and say that, in his conscience, he believes the Federal Constitution ever intended to bestow such powers on Congress? The great divisions of power, distinctly marked in that instrument, are external and internal. The first are conferred upon the General Government—the last, with but few exceptions, and those distinctly defined, remain in possession of the States. It never—never was intended that the vast and mighty machinery of this Government should be introduced into the domestic, the local, the interior concerns of the States, or that it should spend its power in collecting toll at a turnpike gate. I have not been presenting possible cases to the committee. I have confined myself to what must be the necessary effects of the passage of the bill now before us. By what authority is such a tremendous power claimed? That it is not expressly given by the Constitution, is certain. If it exists at all, it must, therefore, be incidental to some express power; and in the language of the Constitution, “be necessary and proper for carrying that power into execution.” From the very nature of incidental power, it cannot transcend the specific power which calls it into existence. The stream cannot flow higher than its fountain. This principle applies, with peculiar force, to the construction of the Constitution. For the purpose of carrying into effect any of its specific powers, it would be absurd to contend that you might exercise another power, greater and more dangerous than that expressly given. The means must be subordinate to the end. Were any other construction to prevail, this Government would no longer be one of limited powers.
The present case affords a striking and forcible illustration of this principle. Let it be granted that you have a right, as proprietor, by the permission of the States, to make a road through their territories, can it ever follow, as an incident to this mere power of appropriating the public money, that you may exercise jurisdiction over this very road, as a sovereign? If you could, the incident is as much greater than the principal, as sovereign is superior to individual power. It does follow that you can keep the road in repair, by appropriations, in the same manner that you have made it; but this is the utmost limit of your power. What, Sir? Exclusive jurisdiction over the road, for its preservation, and for the punishment of all offenders who travel upon it, and that as an incident to the mere power of expending your money upon its construction! The idea is absurd.
Under the power given to Congress “to establish post offices and post roads,” the Federal Government possess the undoubted right of converting any road already constructed, within any State of this Union, into a post road.
Let it also be granted, for the sake of the argument, that they possess the power, independently of the will of the States, to construct as many post roads throughout the Union as they think proper, and to keep them in repair; does it follow that they can establish toll-gates upon such roads? Certainly not. What is the nature of the powder conferred upon Congress? It is a mere right to carry and to protect the mails. It is confined to a single purpose—to the transportation of the mail, and the punishment of offences which violate that right. This is the sole object of the power—the sole purpose for which it was called into existence. Over some post roads, the mail is carried once per day, and over others once per week. With what justice can it be contended that this right of passage for a single purpose—this occasional use of the roads within the different States for post roads—vests in Congress the power of closing up these roads against all the citizens of those States, at all times, until they have paid such a toll as we think proper to impose. Let me present the naked argument of gentlemen before their own eyes. Congress have the right, under the Constitution, “to establish post offices and post roads.” As an incident they possess the power of constructing post roads. As another incident to this right of passage for a single purpose they possess the power to assume jurisdiction over all post roads in the different States, and prevent any person from passing over them, unless upon such terms as they may prescribe. This would, indeed, be construction construed. I would like the gentleman from Virginia (Mr. Mercer) to furnish the committee with an answer to this argument. If I were to grant to that gentleman a right of passage, for a particular purpose only, over a road which belonged to me, what would be my surprise and my indignation, were he to shut it up, by the erection of toll-gates, and prohibited me from passing unless I paid him toll.
Should Congress act upon the precedent which the passage of this bill would establish, it is impossible to foresee the dangers which must follow, to the States and to the people of this country. Upon this branch of the question, permit me to quote the language of Mr. Monroe, in his celebrated message of May, 1822, denying the constitutional power of Congress to erect toll-gates on the Cumberland Road. “If,” said he, “the United States possessed the power contended for under this grant, might they not, on adopting the roads of the individual States for the carriage of the mail, as has been done, assume jurisdiction over them, and preclude a right to interfere with, or alter them? Might they not establish turnpikes, and exercise all the other acts of sovereignty above stated, over such roads, necessary to protect them from injury, and defray the expense of repairing them? Surely, if the right exists, these consequences necessarily followed, as soon as the road was established. The absurdity of such a pretension must be apparent to all who examine it. In this way, a large portion of the territory of every State might be taken from it; for there is scarcely a road in any State which will not be used for the transportation of the mail. A new field for legislation and internal government would thus be opened.” Arguments of the same nature would apply with equal, if not greater force, to those roads which might be used by the United States for the transportation of military stores, or as the medium of commerce between the different States. I shall not now enlarge upon this branch of the subject, believing it, as I do, to be wholly unnecessary.
There is another view of this subject, which I deem to be conclusive. The Constitution of the United States provides that “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 the 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 buildings.” This is the only clause in the Constitution which authorizes the Federal Government to acquire jurisdiction over any portion of the territory of the States; and this power is expressly confined to such forts, magazines, arsenals, dockyards, and other needful buildings, as the States may consider necessary for the defence of the country. You will thus, Sir, perceive with what jealousy our ancestors conferred jurisdiction upon this Government—even over such places as were absolutely necessary for the exercise of the power of war. This power,—which is the power of self-defence—of self-preservation—the power given to this Government of wielding the whole physical force of the country for the preservation of its existence and its liberties—does not confer any implied jurisdiction over the smallest portion of territory. An express authority is given to acquire jurisdiction, for military and for naval purposes, and for them alone, with the consent of the States. Unless that consent has been first obtained, the vast power of war confers no incidental jurisdiction, even over the cannon in your national fortifications. How, then, can it be contended, with the least hope of success, that the same Constitution, which thus expressly limits our power of acquiring jurisdiction, to particular spots, necessary for the purpose of national defence, should, by implication, as an incident to the power to establish post offices and post roads, authorize us to assume jurisdiction over a road one hundred and thirty miles in length, and over all the other post roads in the country. If this construction be correct, all the limitations upon Federal power, contained in the Constitution, are idle and vain. There is no power which this Government shall ever wish to usurp, which cannot, by ingenuity, be found lurking in some of the express powers granted by the Constitution. In my humble judgment, the argument in favor of the constructive power to pass the sedition law is much more plausible than any that can be urged by the advocates of this bill, in favor of its passage. I beg gentlemen to reflect, before they vote in its favor.
I thank the gentleman from Ohio (Mr. Vance) for having reminded me of the resolution passed by the Legislature of Pennsylvania, at their last session, which authorizes the Federal Government to erect toll-gates upon this road, within that Commonwealth; to “enforce the collection of tolls, and, generally, to do and perform any and every other act and thing which may be deemed necessary, to ensure the permanent repair and preservation of the said road.”
I feel the most unfeigned respect for the Legislature of my native State. Their deliberate opinion, upon any subject, will always have a powerful influence over my judgment. It is fairly entitled to as much consideration as the opinion of this or any other legislative body in the Union. This resolution, however, was adopted, as I have been informed, without much deliberation and without debate. It owes its passage to the anxious desire which that body feel to preserve the Cumberland Road from ruin. The constitutional question was not brought into discussion. Had it been fairly submitted to that Republican Legislature, I most solemnly believe they would have been the last in this Union to sanction the assumption, by this Government, of a jurisdiction so ultra-Federal in its nature, and so well calculated to destroy the rights of the States.
But this resolution can have no influence upon the present discussion. The people of the State of Pennsylvania never conferred upon their Legislature the power to cede jurisdiction over any portion of their territory to the United States, or to any other sovereign. If the Legislatures of the different States could exercise such a power, the road to consolidation would be direct. If they can cede jurisdiction to this Government over any portion of their territories, they can cede the whole, and thus altogether destroy the Federal system.
Even if the States possessed the power to cede, the United States have no power to accept such cessions. Their authority to accept cessions of jurisdiction is confined to places “for the erection of forts, magazines, arsenals, dockyards and other needful buildings.” Mr. Monroe, in the message to which I have already referred, declares his opinion “that Congress do not possess this power; that the States, individually, cannot grant it; for, although they may assent to the appropriation of money, within their limits, for such purposes, they can grant no power of jurisdiction, or sovereignty, by special compacts with the United States.”
I think it is thus rendered abundantly clear that, if Congress do not possess the power, under the Federal Constitution, to pass this bill, the States through which the road passes cannot confer it upon them. I feel convinced that even the gentleman who reported this bill (Mr. Mercer) will not contend that the resolution of the Legislature of Pennsylvania could bestow any jurisdiction upon the Government. I am justified in this reference, because that resolution is, in its nature, conditional, and requires that the amount of tolls collected in Pennsylvania shall be applied, exclusively, to the repair of the road within that State; and the present bill contains no provision to carry this condition into effect. The gentleman cannot, therefore, derive his authority to pass this bill from a grant the provisions of which he has disregarded.
This question has already been settled, so far as a solemn legislative precedent can settle any question. During the session of 1821–2, a bill, similar in its provisions to the one now before the committee, passed both Houses of Congress. The vote, on its passage in this House, was eighty-seven in the affirmative, and sixty-eight in the negative. Mr. Monroe, then President of the United States, returned this bill to the House of Representatives, with his objections. So powerful, and so convincing, were his arguments, that, upon its reconsideration, but sixty-eight members voted in the affirmative, whilst seventy-two voted in the negative. Thus, Sir, you perceive, that this House have already solemnly declared, in accordance with the deliberate opinion of the late President of the United States, that Congress do not possess the power to erect toll-gates upon the Cumberland Road. That distinguished individual was the last of the race of Revolutionary Presidents, and, from the soundness of his judgment and the elevated stations which he has occupied, his opinion is entitled to the utmost respect. He was an actor in many of the political scenes of that day when the Constitution was framed, and when it went into operation, under the auspices of Washington—“all which he saw, and part of which he was.” He is, therefore, one of the few surviving statesmen who, from actual knowledge, can inform the present generation what were the opinions of the past. The solemnity and the ability with which he has resisted the exercise of the power of Congress to pass this bill prove, conclusively, the great importance which he attached to the subject.
During that session, I first had the honor of a seat in this House; I voted for the passage of that bill. I had not reflected upon the constitutional question, and I was an advocate of the policy of keeping the road in repair by collecting tolls from those who travelled upon it. After I read the constitutional objections of Mr. Monroe my opinion was changed, and I have ever since been endeavoring, upon all proper occasions, to atone for my vote, by advocating a cession of the road to the respective States through which it passes, that they may erect toll-gates upon it and keep it in repair.
There was a time in the history of this country—I refer to the days of the first President of the United States—when the Government was feeble, and when, in addition to its own powers, the weight of his personal character was necessary fairly to put it in motion. Jealousy of Federal power was then the order of the day. The gulf of consolidation then yawned before the imagination of many of our wisest and best patriots, ready to swallow up the rights of the States and the liberties of the people. In those days, this vast machine had scarcely got into regular motion. Its power and its patronage were then in their infancy, and there was, perhaps, more danger that the jealousy of the States should destroy efficiency of the Federal Government than that it should crush their power. Times have changed. The days of its feebleness and of childhood have passed away. It is now a giant—a Briareus—stretching forth its hundred arms, dispensing its patronage, and increasing its power over every portion of the Union. What patronage and what power have the States to oppose to this increasing influence? Glance your eye over the extent of the Union; compare State offices with those of the United States; and whether avarice or ambition be consulted, those which belong to the General Government are greatly to be preferred to the offices which the States can bestow. Jealousy of Federal power—not of a narrow and mean character, but a watchful and uncompromising jealousy—is now the dictate of the soundest patriotism. The General Government possesses the exclusive right to impose duties upon imports—by far the most productive and the most popular source of revenue. United and powerful efforts are now making to destroy the revenue which the States derive from sales at auction. This Government is now asked to interpose its power between the buyer and seller, and put down public sales of merchandise within the different States—a subject heretofore believed to be within the exclusive jurisdiction of the State sovereignties. Whilst the Federal Government has been advancing with rapid strides, the people of the States have seldom been awakened to a sense of their danger. In the late political struggle, they were aroused, and they nobly maintained their own rights. This, I trust, will always be the case hereafter. Thank Heaven! whilst the people continue true to themselves, the Constitution contains within itself those principles which must ever preserve it. From its very nature—from a difference of opinion as to the constructive powers which may be necessary and proper to carry those which are enumerated into effect—it must ever call into existence two parties, the one jealous of Federal, the other of State power; the one anxious to extend Federal influence, the other wedded to State rights; the one desirous to limit, the other to extend, the power and the patronage of the General Government. In the intermediate space there will be much debatable ground; but a general outline will still remain sufficiently distinct to mark the division between the political parties which have divided, and which will probably continue to divide, the people of this country. Jealousy of Federal power had long been slumbering. The voice of Virginia sounding the alarm has at length awakened several of her sister States; and, although they believe her to be too strict in her construction of the Constitution and her doctrines concerning State rights, yet, they are now willing to do justice to the steadiness and patriotism of her political character. She has kept alive a wholesome jealousy of Federal power. If, then, there be a party in this country friendly to the rights of the States and of the people, I call upon them to oppose the passage of this bill. Should it become a law, it will establish a precedent under the authority of which the sovereign power of this Government can be brought home into the domestic concerns of every State in the Union. We may then take under our own jurisdiction every road over which the mail is carried; every road over which our soldiers and warlike munitions may pass; and every road used for the purpose of carrying on commerce between the several States. Once establish this strained construction of the Federal Constitution, and I would ask gentlemen to point out the limit where this splendid government shall be compelled to stay its chariot wheels. Might it not then drive on to consolidation, under the sanction of the Constitution?
Is there any necessity for venturing upon this dangerous and doubtful measure? I appeal to those gentlemen who suppose the power to be clear, what motive they can have for forcing this measure upon us, who are of a different opinion? Can it make any difference to them whether those toll-gates shall be erected under a law of the United States, or under State authority? Cannot the Legislature of Pennsylvania enact this bill into a law as well as the Congress of the United States? Nobody will doubt their right. I trust no gentleman upon this floor will question the fidelity of that State in complying with all her engagements. She has ever been true to every trust. If she should accept of the cession, as I have no doubt she would, I will pledge myself that you shall never again hear of the road, unless it be that she has kept it in good repair, and that under her care it has answered every purpose for which it was intended.
I know that some popular feeling has been excited against myself in that portion of Pennsylvania though which the road passes. I have been represented as one of its greatest enemies. I now take occasion thus publicly to deny this allegation. It is true that I cannot vote in favor of the passage of this bill, and thus, in my judgment, violate the oath which I have taken to support the Constitution of the United States. No man can expect this from me. But it is equally true that I have heretofore supported appropriations for the repair of this road; and should my amendment prevail, I shall vote in favor of the appropriation of one hundred thousand dollars for that purpose which is contained in this bill.
At a late period in the second session of this Congress, February 6, 1829, a resolution was introduced by Mr. Smyth of Virginia, proposing to amend the Constitution so as to make every President ineligible to the office a second time. Whether this was aimed at General Jackson, who had been elected President in the autumn of 1828, and was to be inaugurated in about thirty days, or whether it had no special object, it was generally regarded as a subject for the discussion of which the remaining time of this Congress was entirely insufficient. Upon a motion to postpone the resolution to the 3d of March, Mr. Buchanan said:
He should vote in favor of the postponement of this resolution until the 3d of March. He did not think that the great constitutional question which it presented ought to be decided, without more time and more reflection than it would be possible to bestow upon it at this late period of the session. We had heard the able and ingenious argument of the gentleman from Virginia (Mr. Smyth) in favor of the proposition, whilst no argument had been urged upon the other side of the question. He said that a more important question could not be presented in a republic, than a proposition to change the Constitution in regard to the election of the Supreme Executive Magistrate. “It is better to bear the ills we have, than fly to others that we know not of,” unless the existing evils are great, and we have a moral certainty that the change will not be productive of still greater evils. The Constitution has been once changed since its adoption, and it is now generally admitted that the alteration was for the worse, and not for the better. This change grew out of the excitement of the moment. It provided against the existence of an evil which, probably, would not again have occurred for a long period of time; but in doing so, it has rendered it almost certain that the election of a President shall often devolve upon the House of Representatives. Had the Constitution remained in its original form; had each elector continued to vote for two persons, instead of one; it could rarely, if ever, have occurred that some one candidate would not have received a majority of all the electoral votes. By this change, we have thus entailed a great evil upon the country.
The example of Washington, which has been followed by Jefferson, Madison and Monroe, has forever determined that no President shall be more than once re-elected. This principle is now become as sacred as if it were written in the Constitution. I would incline to leave to the people of the United States, without incorporating it in the Constitution, to decide whether a President should serve longer than one term. The day may come, when dangers shall lower over us, and when we may have a President at the helm of State who possesses the confidence of the country, and is better able to weather the storm than any other pilot; shall we, then, under such circumstances, deprive the people of the United States of the power of obtaining his services for a second term? Shall we pass a decree, as fixed as fate, to bind the American people, and prevent them from ever re-electing such a man? I am not afraid to trust them with this power.
There is another reason why the House should not be called upon to decide this question hastily. It is a great evil to keep the public mind excited, as it would be, by the election of a new President at the end of each term of four years. Under the existing system, it is probable that, as a general rule, a President, elected by the people, will once be re-elected, unless he shall by his conduct have deprived himself of public confidence. This will, in many instances, prevent the recurrence of a political storm more than once in eight years. These are some of the suggestions which induce me to vote for the postponement of this resolution to a day that will render it impossible for us to act upon it during the present session of Congress. We ought to have ample time to consider this subject before we act.
VI. 1829–1831
THE FIRST ELECTION OF GENERAL JACKSON—BUCHANAN AGAIN ELECTED TO THE HOUSE OF REPRESENTATIVES—HE BECOMES CHAIRMAN OF THE JUDICIARY COMMITTEE—IMPEACHMENT OF JUDGE PECK—BUCHANAN DEFEATS A REPEAL OF THE 25TH SECTION OF THE JUDICIARY ACT—PROPOSED IN PENNSYLVANIA AS A CANDIDATE FOR THE VICE-PRESIDENCY—WISHES TO RETIRE FROM PUBLIC LIFE—FITNESS FOR GREAT SUCCESS AT THE BAR.
General Jackson was elected President of the United States in the autumn of 1828, by a majority of forty-eight electoral votes over Mr. John Quincy Adams, and was inaugurated March 4, 1829. Mr. Calhoun became Vice-President by a majority of forty-one electoral votes. Mr. Buchanan had entered into the popular canvass in favor of General Jackson with much zeal and activity. His efforts to secure for the General the popular vote of Pennsylvania, which were begun in the summer of 1827, were in danger of being embarrassed at that time by the General’s misconception of the purpose of Mr. Buchanan’s interview with him, which took place in 1824, while the election of a President was pending in the House of Representatives. But Mr. Buchanan conducted himself in that matter with so much discretion and forbearance that his influence with General Jackson’s Pennsylvania friends was not seriously impaired. When the canvass of 1828 came on, he was in a position to be regarded as one of the most efficient political supporters of General Jackson in the State; and indeed it was mainly through his influence that the whole of her twenty-eight electoral votes was secured for the candidate whose election he desired. Yet this commanding position did not lead him to expect office of any kind in the new administration, nor does he appear to have desired any. He was re-elected to his old seat in Congress, and was in attendance at the opening of the first session of the 21st Congress in December, 1829. He now became Chairman of the Judiciary Committee of the House, and as such had very weighty duties to perform.
One of the first of these duties, and one that he discharged with signal ability, required him to introduce and advocate a bill to amend and extend the judicial system of the United States, by including in the circuit court system the States of Louisiana, Indiana, Mississippi, Illinois, Alabama, and Missouri, which had hitherto had only district courts, and by increasing the number of judges of the Supreme Court to nine. Mr. Buchanan’s speech in explanation of this measure, delivered January 14, 1830, was as important a one as has been made upon the subject. The measure which he advocated was not adopted at that time; but his speech may be resorted to at all times for its valuable discussion of a question that has not yet lost its interest,—the question of releasing the judges of the Supreme Court entirely from the performance of circuit duties. Until I read this speech, I was not aware how wisely and comprehensively Mr. Buchanan could deal with such a question. The following passages seem to me to justify a very high estimate of his powers, as they certainly contain much wisdom:
Having thus given a hasty sketch of the history of the Judiciary of the United States, and of the jurisdiction of the circuit courts which this bill proposes to extend to the six new States of the Union, I shall now proceed to present the views of the Committee on the Judiciary in relation to this important subject. In doing this, I feel that, before I can expect the passage of the bill, I must satisfy the committee, first, that such a change or modification of the present judiciary system ought to be adopted, as will place the Western States on an equal footing with the other States of the Union; and, second, that the present bill contains the best provisions which, under all the circumstances, can be devised for accomplishing this purpose.
And first, in regard to the States of Ohio, Kentucky, and Tennessee. It may be said that the existing law has already established circuit courts in these three States, and why then should they complain? In answer to this question, I ask gentlemen to look at a map of the United States, and examine the extent of this circuit. The distance which the judge is compelled to travel, by land, for the purpose of attending the different circuit courts, is, of itself, almost sufficient, in a few years, to destroy any common constitution. From Columbus, in Ohio, he proceeds to Frankfort, in Kentucky; from Frankfort to Nashville; and from Nashville, across the Cumberland mountain, to Knoxville. When we reflect that, in addition to his attendance of the courts in each of these States, twice in the year, he is obliged annually to attend the Supreme Court in Washington, we must all admit that his labors are very severe.
This circuit is not only too extensive, but there is a great press of judicial business in each of the States of which it is composed. In addition to the ordinary sources of litigation for the circuit courts throughout the Union, particular causes have existed for its extraordinary accumulation in each of these States. It will be recollected that, under the Constitution and laws of the United States, the circuit courts may try land causes between citizens of the same State, provided they claim under grants from different States. In Tennessee, grants under that State and the State of North Carolina, for the same land, often come into conflict in the circuit court. The interfering grants of Virginia and Kentucky are a fruitful source of business for the circuit court of Kentucky. These causes, from their very nature, are difficult and important, and must occupy much time and attention. Within the Virginia military district of Ohio, there are also many disputed land titles.
Another cause has contributed much to swell the business of the circuit court of Kentucky. The want of confidence of the citizens of other States in the judicial tribunals of that State, has greatly added to the number of suits in the circuit court. Many plaintiff’s, who could, with greater expedition, have recovered their demands in the courts of the State, were compelled, by the impolitic acts of the State Legislature, to resort to the courts of the United States. Whilst these laws were enforced by the State courts, they were disregarded by those of the Union. In making these remarks, I am confident no representative from that patriotic State will mistake my meaning. I rejoice that the difficulties are now at an end, and that the people of Kentucky have discovered the ruinous policy of interposing the arm of the law to shield a debtor from the just demands of his creditor. That gallant and chivalrous people, who possess a finer soil and a finer climate than any other State of the Union, will now, I trust, improve and enjoy the bounties which nature has bestowed upon them with a lavish hand. As their experience has been severe, I trust their reformation will be complete. Still, however, many of the causes which originated in past years, are yet depending in the circuit court of that State.
In 1826, when a similar bill was before this House, we had the most authentic information that there were nine hundred and fifty causes then pending in the circuit court of Kentucky, one hundred and sixty in the circuit court for the western district, and about the same number in that for the eastern district of Tennessee, and upwards of two hundred in Ohio. Upon that occasion, a memorial was presented from the bar of Nashville, signed by G. W. Campbell as chairman, and Felix Grundy, at present a Senator of the United States, as secretary. These gentlemen are both well known to this House, and to the country. That memorial declares that “the seventh circuit, consisting of Kentucky, Ohio, and Tennessee, is too large for the duties of it to be devolved on one man; and it was absolutely impossible for the judge assigned to this circuit to fulfil the letter of the law designating his duties.” Such has been the delay of justice in the State of Tennessee, “that some of the important causes now pending in their circuit courts are older than the professional career of almost every man at the bar.”
The number of causes depending in the seventh circuit, I am informed, has been somewhat reduced since 1826; but still the evil is great, and demands a remedy. If it were possible for one man to transact the judicial business of that circuit, I should have as much confidence that it would be accomplished by the justice of the Supreme Court to which it is assigned, as by any other judge in the Union. His ability and his perseverance are well known to the nation. The labor, however, both of body and mind, is too great for any individual.
Has not the delay of justice in this circuit almost amounted to its denial? Are the States which compose it placed upon the same footing, in this respect, with other States of the Union? Have they not a right to complain? Many evils follow in the train of tardy justice. It deranges the whole business of society. It tempts the dishonest and the needy to set up unjust and fraudulent defences against the payment of just debts, knowing that the day of trial is far distant. It thus ruins the honest creditor, by depriving him of the funds which he had a right to expect at or near the appointed time of payment; and it ultimately tends to destroy all confidence between man and man.
A greater curse can scarcely be inflicted upon the people of any State, than to have their land titles unsettled. What, then, must be the condition of Tennessee, where there are many disputed land titles, when we are informed, by undoubted authority, “that some of the important causes now pending in their circuit courts are older than the professional career of almost every man at the bar.” Instead of being astonished at the complaints of the people of this circuit, I am astonished at their forbearance. A judiciary, able and willing to compel men to perform their contracts, and to decide their controversies, is one of the greatest political blessings which any people can enjoy; and it is one which the people of this country have a right to expect from their Government. The present bill proposes to accomplish this object, by creating a new circuit out of the States of Kentucky and Tennessee. This circuit will afford sufficient employment for one justice of the Supreme Court.
Without insisting further upon the propriety, nay, the necessity, of organizing the circuit courts of Ohio, Kentucky, and Tennessee, in such a manner as to enable them to transact the business of the people, I shall now proceed to consider the situation of the six new States, Louisiana, Indiana, Mississippi, Illinois, Alabama, and Missouri. Their grievances are of a different character. They do not so much complain of the delay of justice, as that Congress has so long refused to extend to them the circuit court system, as it exists in all the other States. As they successively came into the Union, they were each provided with a district court and a district judge, possessing circuit court powers. The acts which introduced them into our political family declare that they shall “be admitted into the Union on an equal footing with the original States, in all respects whatever.” I do not mean to contend that by virtue of these acts we were bound immediately to extend to them the circuit court system. Such has not been the practice of Congress, in regard to other States in a similar situation. I contend, however, that these acts do impose an obligation upon us to place them “on an equal footing with the original States,” in regard to the judiciary, as soon as their wants require it, and the circumstances of the country permit it to be done. That time has, in my opinion, arrived. Louisiana has now been nearly eighteen years a member of the Union, and is one of our most commercial States; and yet, until this day, she has been without a circuit court. It is more than thirteen years since Indiana was admitted; and even our youngest sister, Missouri, will soon have been nine years in the family. Why should not these six States be admitted to the same judicial privileges which all the others now enjoy? Even if there were no better reason, they have a right to demand it for the mere sake of uniformity. I admit this is an argument dictated by State pride; but is not that a noble feeling? Is it not a feeling which will ever characterize freemen? Have they not a right to say to us, if the circuit court system be good for you, it will be good for us? You have no right to exclusive privileges. If you are sovereign States, so are we. By the terms of our admission, we are perfectly your equals. We have long submitted to the want of this system, from deference to your judgment; but the day has now arrived when we demand it from you as our right. But there are several other good reasons why the system ought to be extended to these States. And, in the first place, the justices of the Supreme Court are selected from the very highest order of the profession. There is scarcely a lawyer in the United States who would not be proud of an elevation to that bench. A man ambitious of honest fame ought not to desire a more exalted theatre for the display of ability and usefulness. Besides, the salary annexed to this office is sufficient to command the best talents of the country. I ask you, sir, is it not a serious grievance for those States to be deprived of the services of such a man in their courts? I ask you whether it is equal justice, that whilst, in eighteen States of the Union, no man can be deprived of his life, his liberty, or his property, by the judgment of a circuit court, without the concurrence of two judges, and one of them a justice of the Supreme Court, in the remaining six the fate of the citizen is determined by the decision of a single district judge? Who are, generally speaking, these district judges? In asking this question, I mean to treat them with no disrespect. They receive but small salaries, and their sphere of action is confined to their own particular districts. There is nothing either in the salary or in the station which would induce a distinguished lawyer, unless under peculiar circumstances, to accept the appointment. And yet the judgment of this individual, in six States of the Union, is final and conclusive, in all cases of law, of equity, and of admiralty and maritime jurisdiction, wherein the amount of the controversy does not exceed two thousand dollars. Nay, the grievance is incomparably greater. His opinion in all criminal cases, no matter how aggravated may be their nature, is final and conclusive. A citizen of these States may be deprived of his life, or of his character, which ought to be dearer than life, by the sentence of a district judge; against which there is no redress, and from which there can be no appeal.
There is another point of view in which the inequality and injustice of the present system, in the new States, is very striking. In order to produce a final decision, both the judges of a circuit court must concur. If they be divided in opinion, the point of difference is certified to the Supreme Court, for their decision; and this, whether the amount in controversy be great or small. The same rule applies to criminal cases. In such a court, no man can be deprived of life, of liberty, or of property, by a criminal prosecution, without the clear opinion of the two judges that his conviction is sanctioned by the laws of the land. If the question be doubtful or important, or if it be one of the first impression, the judges, even when they do not really differ, often agree to divide, pro forma, so that the point may be solemnly argued and decided in the Supreme Court. Thus, the citizen of every State in which a circuit court exists, has a shield of protection cast over him, of which he cannot be deprived, without the deliberate opinion of two judges; whilst the district judge of the six new Western States must alone finally decide every criminal question, and every civil controversy in which the amount in dispute does not exceed two thousand dollars.
In the eastern district of Louisiana, the causes of admiralty and maritime jurisdiction decided by the district court must be numerous and important. If a circuit court were established for that State, a party who considered himself aggrieved might appeal to it from the district court in every case in which the amount in controversy exceeded fifty dollars. At present there is no appeal, unless the value of the controversy exceeds two thousand dollars; and then it must be made directly to the Supreme Court, a tribunal so far remote from the city of New Orleans, as to deter suitors from availing themselves of this privilege.
I shall not further exhaust the patience of the committee on this branch of the subject. I flatter myself that I have demonstrated the necessity for such an alteration of the existing laws as will confer upon the people of Ohio, Kentucky, and Tennessee, and of the six new Western States, the same benefits from the judiciary, as those which the people of the other States now enjoy.
The great question, then, which remains for discussion is, does the present bill present the best plan for accomplishing this purpose, which, under all circumstances, can be devised? It is incumbent upon me to sustain the affirmative of this proposition. There have been but two plans proposed to the Committee on the Judiciary, and but two can be proposed, with the least hope of success. The one an extension of the present system, which the bill now before the committee contemplates, and the other a resort to the system which was adopted in the days of the elder Adams, of detaching the justices of the Supreme Court from the performance of circuit duties, and appointing circuit judges to take their places. After much reflection upon this subject I do not think that the two systems can be compared, without producing a conviction in favor of that which has long been established. The system of detaching the judges of the Supreme Court from the circuits has been already tried, and it has already met the decided hostility of the people of this country. No act passed during the stormy and turbulent administration of the elder Adams, which excited more general indignation among the people. The courts which it established were then, and have been ever since, branded with the name of the “midnight judiciary.” I am far from being one of those who believe the people to be infallible. They are often deceived by the arts of demagogues; but this deception endures only for a season. They are always honest, and possess much sagacity. If, therefore, they get wrong, it is almost certain they will speedily return to correct opinions. They have long since done justice to other acts of that administration, which at the time they condemned; but the feeling against the judiciary established under it remains the same. Indeed, many now condemn that system, who were formerly its advocates. In 1826, when a bill, similar in its provisions to the bill now before the committee, was under discussion in this House, a motion was made by a gentleman from Virginia [Mr. Mercer] to recommit it to the Committee on the Judiciary, with an instruction so to amend it, as to discharge the judges of the Supreme Court from attendance on the circuit courts, and to provide a uniform system for the administration of justice in the inferior courts of the United States. Although this motion was sustained with zeal and eloquence and ability by the mover, and by several other gentlemen, yet, when it came to the vote, it was placed in a lean minority, and, I believe, was negatived without a division. It is morally certain that such a bill could not now be carried. It would, therefore, have been vain and idle in the Committee on the Judiciary to have reported such a bill. If the Western States should be doomed to wait for a redress of their grievances, until public opinion shall change upon this subject, it will, probably, be a long time before they will obtain relief.
But, Sir, there are most powerful reasons for believing that public opinion upon this subject is correct. What would be the natural consequences of detaching the judges of the Supreme Court from circuit duties? It would bring them and their families from the circuits in which they now reside; and this city would become their permanent residence. They would naturally come here; because here, and nowhere else, would they then have official business to transact. What would be the probable effect of such a change of residence? The tendency of everything within the ten miles square is towards the Executive of the Union. He is here the centre of attraction. No matter what political revolutions may take place, no matter who may be up or who may be down, the proposition is equally true. Human nature is not changed under a Republican Government. We find that citizens of a republic are worshippers of power, as well as the subjects of a monarchy. Would you think it wise to bring the justices of the Supreme Court from their residence in the States, where they breathe the pure air of the country, and assemble them here within the very vortex of Executive influence? Instead of being independent judges, scattered over the surface of the Union, their feelings identified with the States of which they are citizens, is there no danger that, in the lapse of time, you would convert them into minions of the Executive? I am far, very far, from supposing that any man, who either is or who will be a justice of the Supreme Court, could be actually corrupted; but if you place them in a situation where they or their relatives would naturally become candidates for Executive patronage, you place them, in some degree, under the control of Executive influence. If there should now exist any just cause for the complaints against the Supreme Court, that in their decisions they are partial to Federal rather than to State authority (and I do not say that there is), that which at present may be but an imaginary fear might soon become a substantial reality. I would place them beyond the reach of temptation. I would suffer them to remain, as they are at present, citizens of their respective States, visiting this city annually to discharge their high duties, as members of the Supreme Court. This single view of the subject, if there were no other, ought, in my judgment, to be conclusive.
Let us now suppose, for the sake of the argument, that the withdrawal of the justices of the Supreme Court from their circuit duties, and their residence in this city, would produce no such effects, as I apprehend, upon the judges themselves; what would be the probable effect upon public opinion? It has been said, and wisely said, that the first object of every judicial tribunal ought to be to do justice; the second, to satisfy the people that justice has been done. It is of the utmost importance in this country that the judges of the Supreme Court should possess the confidence of the public. This they now do in an eminent degree. How have they acquired it? By travelling over their circuits, and personally showing themselves to the people of the country, in the able and honest discharge of their high duties, and by their extensive intercourse with the members of the profession on the circuits in each State, who, after all, are the best judges of judicial merit, and whose opinions upon this subject have a powerful influence upon the community. Elevated above the storms of faction and of party which have sometimes lowered over us, like the sun, they have pursued their steady course, unawed by threats, unseduced by flattery. They have thus acquired that public confidence which never fails to follow the performance of great and good actions, when brought home to the personal observation of the people.
Would they continue to enjoy this extensive public confidence, should they no longer be seen by the people of the States, in the discharge of their high and important duties, but be confined, in the exercise of them, to the gloomy and vaulted apartment which they now occupy in this Capitol? Would they not be considered as a distant and dangerous tribunal? Would the people, when excited by strong feeling, patiently submit to have the most solemn acts of their State Legislatures swept from the statute-book, by the decision of judges whom they never saw, and whom they had been taught to consider with jealousy and suspicion? At present, even in those States where their decisions have been most violently opposed, the highest respect has been felt for the judges by whom they were pronounced, because the people have had an opportunity of personally knowing that they were both great and good men. Look at the illustrious individual who is now the Chief Justice of the United States. His decisions upon constitutional questions have ever been hostile to the opinions of a vast majority of the people of his own State; and yet with what respect and veneration has he been viewed by Virginia? Is there a Virginian, whose heart does not beat with honest pride when the just fame of the Chief Justice is the subject of conversation? They consider him, as he truly is, one of the greatest and best men which this country has ever produced. Think ye that such would have been the case, had he been confined to the city of Washington, and never known to the people, except in pronouncing judgments in this Capitol, annulling their State laws, and calculated to humble their State pride? Whilst I continue to be a member of this House, I shall never incur the odium of giving a vote for any change in the judiciary system the effect of which would, in my opinion, diminish the respect in which the Supreme Court is now held by the people of this country.
The judges whom you would appoint to perform the circuit duties, if able and honest men, would soon take the place which the judges of the Supreme Court now occupy in the affections of the people; and the reversal of their judgments, when they happened to be in accordance with strong public feeling, would naturally increase the mass of discontent against the Supreme Court.
There are other reasons, equally powerful, against the withdrawal of the judges from the circuits. What effect would such a measure probably produce upon the ability of the judges themselves to perform their duties? Would it not be very unfortunate?
No judges upon earth ever had such various and important duties to perform, as the justices of the Supreme Court. In England, whence we have derived our laws, they have distinct courts of equity, courts of common law, courts of admiralty, and courts in which the civil law is administered. In each of these courts, they have distinct judges; and perfection in any of these branches is certain to be rewarded by the honors of that country. The judges of our Supreme Court, both on their circuits and in banc, are called upon to adjudicate on all these codes. But this is not all. Our Union consists of twenty-four sovereign States, in all of which there are different laws and peculiar customs. The common and equity law have thus been changed and inflected into a hundred different shapes, and adapted to the various wants and opinions of the different members of our confederacy. The judicial act of 1789 declares “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide,” shall be regarded as rules of decision in the courts of the United States. The justices of the Supreme Court ought, therefore, to be acquainted with the ever-varying codes of the different States.
There is still another branch of their jurisdiction, of a grand and imposing character, which places them far above the celebrated Amphictyonic council. The Constitution of the United States has made them the arbiters between conflicting sovereigns. They decide whether the sovereign power of the States has been exercised in conformity with the Constitution and laws of the United States; and, if this has not been done, they declare the laws of the State Legislatures to be void. Their decisions thus control the exercise of sovereign power. No tribunal ever existed, possessing the same, or even similar authority. Now, Sir, suppose you bring these judges to Washington, and employ them in banc but six weeks or two months in the year, is it not certain that they will gradually become less and less fit to decide upon these different codes, and that they will at length nearly lose all recollection of the peculiar local laws of the different States? Every judicial duty which each of them would then be required to perform, would be to prepare and deliver a few opinions annually in banc.
The judgment, like every other faculty of the mind, requires exercise to preserve its vigor. That judge who decides the most causes, is likely to decide them the best. He who is in the daily habit of applying general principles to the decision of cases, as they arise upon the circuits, is at the same time qualifying himself in the best manner for the duties of his station on the bench of the Supreme Court.
Is it probable that the long literary leisure of the judges in this city, during ten months of the year, would be devoted to searching the two hundred volumes of jarring decisions of State courts, or in studying the acts of twenty-four State Legislatures? The man must have a singular taste and a firm resolution who, in his closet, could travel over this barren waste. And even if he should, what would be the consequence? The truth is, such knowledge cannot be obtained; and after it has been acquired, it cannot be preserved, except by constant practice. There are subjects which, when the memory has once grasped, it retains forever. It has no such attachment for acts of Assembly, acts of Congress, and reports of adjudged cases, fixing their construction. This species of knowledge, under the present system, will always be possessed by the judges of the Supreme Court; because, in the performance of their circuit duties, they are placed in a situation in which it is daily expounded to them, and in which they are daily compelled to decide questions arising upon it. Change this system, make them exclusively judges of an appellate court, and you render it highly probable that their knowledge of the general principles of the laws of their country will become more and more faint, and that they will finally almost lose the recollection of the peculiar local systems of the different States. “Practice makes perfect,” is a maxim applicable to every pursuit in life. It applies with peculiar force to that of a judge. I think I might appeal for the truth of this position to the long experience of the distinguished gentleman from New York, now by my side (Mr. Spencer). A man, by study, may become a profound lawyer in theory, but nothing except practice can make him an able judge. I call upon every member of the profession in this House to say whether he does not feel himself to be a better lawyer at the end of a long term, than at the beginning. It is the circuit employment, imposed upon the judges of England and the United States, which has rendered them what they are. In my opinion, both the usefulness and the character of the Supreme Court depend much upon its continuance.
I now approach what I know will be urged as the greatest objection to the passage of this bill—that it will extend the number of the judges of the Supreme Court to nine. If the necessities of the country required that their number should be increased to ten, I would feel no objection to such a measure. The time has not yet arrived, however, when, in my opinion, such a necessity exists. Gentlemen, in considering this subject, ought to take those extended views which belong to statesmen. When we reflect upon the vast extent of our country, and the various systems of law under which the people of the different States are governed, I cannot conceive that nine or even ten judges are too great a number to compose our appellate tribunal. That number would afford a judicial representation upon the bench of each large portion of the Union. Not, Sir, a representation of sectional feelings or of the party excitements of the day, but of that peculiar species of legal knowledge necessary to adjudicate wisely upon the laws of the different States. For example, I ask what judge now upon the bench possesses, or can possess, a practical knowledge of the laws of Louisiana? Their system is so peculiar, that it is almost impossible for a man to decide correctly upon all cases arising under it, who has never been practically acquainted with the practice of their courts. Increase the number of judges to nine, and you will then have them scattered throughout all the various portions of the Union. The streams of legal knowledge peculiar to the different States will then flow to the bench of the Supreme Court as to a great reservoir, from whence they will be distributed throughout the Union. There will then always be sufficient local information upon the bench, if I may use the expression, to detect all the ingenious fallacies of the bar, and to enable them to decide correctly upon local questions. I admit, if the judges were confined to appellate duties alone, nine or ten would probably be too great a number. Then there might be danger that some of them would become mere nonentities, contenting themselves simply with voting aye or no in the majority or minority. There would then also be danger that the Executive might select inefficient men for this high station, who were his personal favorites, expecting their incapacity to be shielded from public observation by the splendid talents of some of the other judges upon the bench. Under the present system we have no such danger to apprehend. Each judge must now feel his own personal responsibility. He is obliged to preside in the courts throughout his circuit, and to bring home the law and the justice of his country to his fellow-citizens in each of the districts of which it is composed. Much is expected from a judge placed in his exalted station; and he must attain to the high standard of public opinion by which he is judged, or incur the reproach of holding an office to which he is not entitled. No man in any station in this country can place himself above public opinion.
Upon the subject of judicial appointments, public opinion has always been correct. No factious demagogue, no man, merely because he has sung hosannas to the powers that be, can arrive at the bench of the Supreme Court. The Executive himself will always be constrained by the force of public sentiment, whilst the present system continues, to select judges for that court from the ablest and best men of the circuit; and such has been the course which he has hitherto almost invariably pursued. Were he to pursue any other, he would inevitably incur popular odium. Under the existing system, there can be no danger in increasing the number of the judges to nine. But take them from their circuits, destroy their feeling of personal responsibility by removing them from the independent courts over which they now preside, and make them merely an appellate tribunal, and I admit there would be danger, not only of improper appointments, but that a portion of them, in the lapse of time, might become incompetent to discharge the duties of their station.
But, Sir, have we no examples of appellate courts consisting of a greater number than either nine or ten judges, which have been approved by experience? The Senate of the State of New York has always been their court of appeals; and, notwithstanding they changed their constitution a few years ago, so much were the people attached to this court, that it remains unchanged. In England, the twelve judges, in fact, compose the court of appeals. Whenever the House of Lords sits in a judicial character, they are summoned to attend, and their opinions are decisive of almost every question. I do not pretend to speak accurately, but I doubt whether the House of Lords have decided two cases, in opposition to the opinion of the judges, for the last fifty years. In England there is also the court of exchequer chamber, consisting of the twelve judges, and sometimes of the lord chancellor also, into which such causes may be adjourned from the three superior courts, as the judges find to be difficult of decision, before any judgment is given upon them in the court in which they originated. The court of exchequer chamber is also a court of appeals, in the strictest sense of the word, in many cases which I shall not take time to enumerate.
I cannot avoid believing that the prejudice which exists in the minds of some gentlemen, against increasing the number of the judges of the Supreme Court to nine, arises from the circumstance that the appellate courts of the different States generally consist of a fewer number. But is there not a striking difference between the cases? It does not follow that because four or five may be a sufficient number in a single State where one uniform system of laws prevails, nine or ten would be too many on the bench of the Supreme Court, which administers the laws of twenty-four States, and decides questions arising under all the codes in use in the civilized world. Indeed, if four or five judges be not too many for the court of appeals in a State, it is a strong argument that nine or ten are not too great a number for the court of appeals of the Union. Upon the whole, I ask, would it be wise in this committee, disregarding the voice of experience, to destroy a system which has worked well in practice for forty years, and resort to a dangerous and untried experiment, merely from a vague apprehension that nine judges will destroy the usefulness and character of that court, which has been raised by seven to its present exalted elevation.
It will, no doubt, be objected to this bill, as it has been upon a former occasion, that the present system cannot be permanent, and that, ere long, the judges of the Supreme Courts must, from necessity, be withdrawn from their circuits. To this objection there is a conclusive answer. We know that the system is now sufficient for the wants of the country, and let posterity provide for themselves. Let us not establish courts which are unnecessary in the present day, because we believe that hereafter they may be required to do the business of the country.
But, if it were necessary, I believe it might be demonstrated that ten justices of the Supreme Court will be sufficient to do all the judicial business of the country which is required of them under the present system, until the youngest member of this House shall be sleeping with his fathers. Six judges have done all the business of the States east of the Alleghany mountains, from the adoption of the Federal Constitution up till this day; and still their duties are not laborious. If it should be deemed proper by Congress, these fifteen Eastern States might be arranged into five circuits instead of six, upon the occurrence of the next vacancy in any of them, without the least inconvenience either to the judges or to the people; and thus it would be rendered unnecessary to increase the bench of the Supreme Court beyond nine, even after the admission of Michigan and Arkansas into the Union. The business of the Federal courts, except in a few States, will probably increase but little for a long time to come. One branch of it must, before many years, be entirely lopped away. I allude to the controversies between citizens of the same State claiming lands under grants from different States. This will greatly diminish their business both in Tennessee and Kentucky. Besides, the State tribunals will generally be preferred by aliens and by citizens of other States for the mere recovery of debts, on account of their superior expedition.
I should here close my remarks, if it were not necessary to direct the attention of the committee for a few minutes to the details of the bill. And here permit me to express my regret that my friend from Kentucky (Mr. Wickliffe) has thought proper to propose an amendment to add three, instead of two, judges to the Supreme Court. Had a majority of the Committee on the Judiciary believed ten judges, instead of nine, to be necessary, I should have yielded my opinion, as I did upon a former occasion, and given the bill my support in the House. This I should have done to prevent division among its friends, believing it to be a mere question of time: for ten will become necessary in a few years, unless the number of the Eastern circuits should be reduced to five.
Another important matter which devolved upon Mr. Buchanan as Chairman of the Judiciary Committee, related to the impeachment of Judge James H. Peck, the United States district judge for the district of Missouri. The facts of this singular case were briefly these: Judge Peck had decided a land-cause against certain parties who were represented in his court by an attorney and counsellor named Lawless. Lawless published in a St. Louis newspaper some comments on the Judge’s opinion, by no means intemperate in their character. The Judge thereupon attached Lawless for a contempt, caused him to be imprisoned twenty-four hours in the common jail, and suspended him from practice for a period of eighteen months. Upon these facts, when brought before the House of Representatives by Lawless’ memorial, there could be but one action. The Judiciary Committee voted an impeachment of the Judge, and Mr. Buchanan reported their recommendation on the 23d of March, 1830. He said that the committee deemed it most fair towards the accused not to report at length their reasons for arriving at the conclusion that the Judge ought to be impeached, but that they thought it advisable to follow the precedent which had been established in the case of the impeachment of Judge Chase. A desultory discussion followed upon a motion to print the report and the documents, and upon an amendment to include the address which it seems that the Judge had been allowed to make to the committee. But before any vote was taken, the Speaker, on the 5th of April, presented a memorial from Judge Peck, praying the House to allow him to present a written exposition of the facts and law of the case, and to call witnesses to substantiate it, or else to vote the impeachment at once on “the partial evidence” which the committee had heard. In the course of these proceedings the House, if it had not been better guided, might have established an unfortunate precedent. While the resolution reported by the Judiciary Committee for the impeachment of the Judge was pending in Committee of the Whole, Mr. Everett moved a counter-resolution that there was not sufficient evidence of evil intent to authorize the House to impeach Judge Peck of high misdemeanors in office. This, in effect, would have converted the grand inquest into a tribunal for the determination of the whole question of guilt or innocence, upon allegations and proofs on the one side and the other. It was opposed by Mr. Storrs, Mr. Ellsworth, Mr. Wickliffe and others, and was negatived. The resolution reported by Mr. Buchanan for the impeachment of the Judge was then adopted by the Committee of the Whole, and reported to the House, after which Mr. Buchanan demanded the yeas and nays, which resulted in a vote of 123 for the impeachment and 49 against it. An article of impeachment was prepared by Mr. Buchanan, and was by order of the House presented to the Senate. The managers appointed to conduct the impeachment on the part of the House were Mr. Buchanan, Henry R. Storrs of New York, George McDuffie of South Carolina, Ambrose Spencer of New York, and Charles Wickliffe of Kentucky.
The Senate was organized as a court of impeachment on the 25th of May, 1830; but the trial was postponed to the second Monday of the next session of Congress. It began on that day, December 20, 1830. It was Mr. Buchanan’s duty to close the case on behalf of the managers, in reply to Mr. Wirt and Mr. Meredith of Baltimore, the counsel for Judge Peck. Of Mr. Buchanan’s speech, I have found no adequate report. It was delivered on the 28th of January, 1831. Contemporary notices of it show that it was an argument of marked ability. His positions as given in the Annals of Congress were in substance the following:
He declared that the usurpation of an authority not legally possessed by a judge, or the manifest abuse of a power really given, was a misbehavior in the sense of the Constitution for which he should be dismissed from office. He contended that the conduct of Judge Peck, in the case of Mr. Lawless, was in express violation of the Constitution and the laws of the land; that the circumstances of that case were amply sufficient to show a criminal intention on his part in the summary punishment of Mr. Lawless; that in order to prove the criminality of his intention it was not necessary to demonstrate an actually malicious intention, or a lurking revenge; that the infliction upon Mr. Lawless of a summary and cruel punishment, for having written an article decorous in its language, was itself sufficient to prove the badness of the motive; that the consequences of the Judge’s actions were indicative of his intentions; that our courts had no right to punish, as for contempts, in a summary mode, libels, even in pending causes; and that if he succeeded, as he believed he should, in establishing these positions, he should consider that he had a right to demand the judgment of the court against the respondent.
He took the further position that the publication of Mr. Lawless, under the signature of “A Citizen,” could not, in a trial upon an indictment for libel, be established to be libellous, according to the Constitution and laws of the land; that the paper was, on its face, perfectly harmless in itself; and that, so far as it went, it was not an unfair representation of the opinion of Judge Peck. The honorable manager critically and legally analyzed the nine last specifications in the publication, to establish these points. He then proceeded to sum up and descant upon the testimony produced in the case before the court of impeachment, in order to show the arbitrary and cruel conduct of Judge Peck; and in a peroration, marked by its ardent eloquence, he declared that if this man escaped, the declaration of a distinguished politician of this country, that the power of impeachment was but the scarecrow of the Constitution, would be fully verified; that when this trial commenced, he recoiled with horror from the idea of limiting, and rendering precarious and dependent, the tenure of the judicial office, but that the acquittal of the respondent would reconcile him to that evil, as one less than a hopeless and remediless submission to judicial usurpation and tyranny, at least so far as respected the inferior courts.
God forbid that the limitation should ever be extended to the Supreme Court. Mercy to the respondent would be cruelty to the American people.
Judge Peck was acquitted by a vote of 21 for the impeachment and 22 against it, the constitutional vote of two-thirds requisite for conviction not being obtained. It is quite apparent that no party feeling entered into the case.
[GEO. W. BUCHANAN TO JAMES BUCHANAN]
PITTSBURGH, November 5, 1830.
DEAR BROTHER:—
I had the honor to receive by last night’s mail a letter from Mr. Van Buren, enclosing me a commission from the President for the district attorneyship. This day I will acknowledge its receipt. I am sincerely glad both on your account and my own that the President has appointed me. It banishes in a moment all those suspicions which some persons entertained of his coldness towards you. It should be my highest ambition to justify the appointment by a faithful discharge of official duty.
My appointment appears to be received very well in this city. It will excite some feelings of envy towards me among the young members of the bar. My path, however, is very plain. It shall not alter my conduct or manner in any respect.
I am, in haste, your grateful and affectionate brother,
GEO. W. BUCHANAN.
The most signal service rendered by Mr. Buchanan in the 21st Congress, as Chairman of the Judiciary Committee, was in a minority report made by him on the 24th of January, 1831, upon a proposition to repeal the twenty-fifth section of the judiciary act of 1789, which gave the Supreme Court appellate jurisdiction, by writ of error to the State courts, in cases where the Constitution, treaties, and laws of the United States are drawn in question. A resolution to inquire into the expediency of repealing this great organic law having been referred to the committee, a majority of the committee made an elaborate report in favor of the repeal, through Mr. Smith of South Carolina, accompanied by a bill to effect the repeal. Mr. Buchanan’s counter-report, which had the concurrence of two other members, caused the rejection of the bill, by a vote of 138 to 51. I know of few constitutional discussions which evince a more thorough knowledge or more accurate views of the nature of our mixed system of Government than this report from the pen of Mr. Buchanan. If it be said that the argument is now familiar to us, or that it could have been drawn from various sources, let it be observed that this document shows that Mr. Buchanan was, at this comparatively early period of his life, a well-instructed constitutional jurist; and that while no one could originate at that day any novel views of this important subject, it was no small merit to be able to set forth clearly and cogently the whole substance of such a topic. I think no apology is needed for the insertion here of this valuable paper. It may be prefaced by an extract from a letter of Mr. Buchanan’s youngest brother, George W. Buchanan, which shows how it was received by the public in Pennsylvania:
PITTSBURGH, February 4, 1831.
...... I have read with the highest degree of satisfaction your able report from the minority of the Judiciary Committee. That document will identify your name with the most important constitutional question which has been presented to the consideration of Congress for many years. It was looked for with much anxiety, and is now spoken of by politicians of every party as a lucid and powerful appeal to the patriotism of Congress. If the question was to be started, I am sincerely glad that it has arisen while you occupied the chair of the Judiciary Committee......
HOUSE OF REPRESENTATIVES, January 24, 1831.
The Committee on the Judiciary, to which was referred a resolution of the House of Representatives of the 21st ultimo, instructing them “to inquire into the expediency of repealing or modifying the twenty-fifth section of an act entitled ‘An act to establish the judicial courts of the United States,’ passed the 24th September, 1789,” having made a report, accompanied by a bill to repeal the same, the minority of that committee, differing in opinion from their associates upon this important question, deem it to be their duty to submit to the House the following report:
The Constitution of the United States has conferred upon Congress certain enumerated powers, and expressly authorizes that body “to make all laws which shall be necessary and proper for carrying these powers into execution.” In the construction of this instrument, it has become an axiom, the truth of which cannot be controverted, that “the General Government, though limited as to its objects, is supreme with respect to those objects.”
The Constitution has also conferred upon the President, “by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur,” the power to make treaties.
By the second section of the sixth article of this instrument it is declared, in emphatic language, that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”
The Constitution having conferred upon Congress the power of legislation over certain objects, and upon the President and Senate the power of making treaties with foreign nations, the next question which naturally presented itself to those who framed it was, in what manner it would be most proper that the Constitution itself, and the laws and treaties made under its authority, should be carried into execution. They have decided this question in the following strong and comprehensive language: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” [Art. 3, Sec. 2.] This provision is the only one which could have been made in consistency with the character of the Government established by the Constitution. It would have been a strange anomaly had that instrument established a judiciary whose powers did not embrace all the laws and all the treaties made under its authority. The symmetry of the system would thus have been destroyed; and, in many cases, Congress would have had to depend exclusively for the execution of their own laws upon the judiciary of the States. This principle would have been at war with the spirit which pervades the whole Constitution. It was clearly the intention of its framers to create a Government which should have the power of construing and executing its own laws, without any obstruction from State authority. Accordingly, we find that the judicial power of the United States extends, in express terms, “to all cases,” in law and in equity, arising under the Constitution, the laws, and the treaties of the United States. This general language comprehends precisely what it ought to comprehend.
If the judicial powers of the United States does thus extend to “all cases” arising under the Constitution, the laws, and treaties of the Union, how could this power be brought into action over such cases without a law of Congress investing the Supreme Court with the original and appellate jurisdiction embraced by the Constitution?
It was the imperious duty of Congress to make such a law, and it is equally its duty to continue it; indeed, without it, the judicial power of the United States is limited and restricted to such cases only as arise in the Federal courts, and is never brought to bear upon numerous cases, evidently within its range.
When Congress, in the year 1789, legislated upon this subject, they knew that the State courts would often be called upon, in the trial of causes, to give a construction to the Constitution, the treaties, and laws of the United States. What, then, was to be done? If the decisions of the State courts should be final, the Constitution and laws of the Union might be construed to mean one thing in one State, and another thing in another State.
All uniformity in their construction would thus be destroyed. Besides, we might, if this were the case, get into serious conflicts with foreign nations, as a treaty might receive one construction in Pennsylvania, another in Virginia, and a third in New York. Some common and uniform standard of construction was absolutely necessary.
To remedy these and other inconveniences, the first Congress of the United States, composed, in a considerable proportion, of the framers of the Constitution, passed the 25th section of the judicial act of the 24th September, 1789. It is in the following words:
“SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party under such clause of the said Constitution, treaty, statute, or commission, may be re-examined and reversed, or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court; and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity, or construction of the said Constitution, treaties, statutes, commissions, or authorities, in dispute.”
This section embraces three classes of cases. The first, those in which a State court should decide a law or treaty of the United States to be void, either because it violated the Constitution of the United States, or for any other reason. Ought there not in such cases to be an appeal to the Supreme Court of the United States? Without such an appeal, the General Government might be obliged to behold its own laws and its solemn treaties annulled by the judiciary of every State in the Union, without the power of redress.
The second class of cases is of a different character. It embraces those causes in which the validity of State laws is contested, upon the principle that they violate the Constitution, the laws, or the treaties of the United States, and have, therefore, been enacted in opposition to the authority of the “supreme law of the land.” Cases of this description have been of frequent occurrence. It has often been drawn into question before the State courts, whether State laws did or did not violate the Constitution of the United States. Is it not then essential to the preservation of the General Government, that the Supreme Court of the United States should possess the power of reviewing the judgments of State courts in all cases wherein they have established the validity of a State law in opposition to the Constitution and laws of the United States?
The third class differs essentially from each of the two first. In the cases embraced by it, neither the validity of acts of Congress, nor of treaties, nor of State laws is called in question. This clause of the 25th section merely confers upon the Supreme Court the appellate jurisdiction of construing the Constitution, laws, and treaties of the United States, when their protection has been invoked by parties to suits before the State courts, and has been denied by their decision. Without the exercise of this power, in cases originating in the State courts, the Constitution, laws, and treaties of the United States would be left to be finally construed and executed by a judicial power, over which Congress has no control.
This section does not interfere, either directly or indirectly, with the independence of the State courts in finally deciding all cases arising exclusively under their own constitution and laws. It leaves them in the enjoyment of every power which they possessed before the adoption of the Federal Constitution. It merely declares that, as that Constitution established a new form of Government, and consequently gave to the State courts the power of construing, in certain cases, the Constitution, the laws, and the treaties of the United States, the Supreme Court of the United States should, to this limited extent, but not beyond it, possess the power of reviewing their judgments. The section itself declares that no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.
The minority of the committee will now proceed to advance, in a more distinct form, a few of the reasons why, in their opinion, the 25th section of this act ought not to be repealed.
And, in the first place, it ought to be the chief object of all Governments to protect individual rights. In almost every case involving a question before a State court under this section of the judiciary act, the Constitution, laws, or treaties of the United States are interposed for the protection of individuals. Does a citizen invoke the protection of an act of Congress upon a trial before a State court which decides that act to be unconstitutional and void, and renders judgment against him? This section secures his right of appeal from such a decision to the Supreme Court of the United States.
When a citizen, in a suit before a State court, contends that a State law, by which he is assailed, is a violation of the Constitution of the United States and therefore void (if his plea should be overruled), he may bring this question before the Supreme Court of the United States.
In like manner, when an individual claims any right before a State court under the Constitution or laws of the United States, and the decision is against his claim, he may appeal to the Supreme Court of the United States.
If this section were repealed, all these important individual rights would be forfeited.
The history of our country abundantly proves that individual States are liable to high excitements and strong prejudices. The judges of these States would be more or less than men if they did not participate in the feelings of the community by which they are surrounded. Under the influence of these excitements, individuals, whose rights happen to clash with the prevailing feeling of the State, would have but a slender hope of obtaining justice before a State tribunal. There would be the power and the influence of the State sovereignty on the one side, and an individual who had made himself obnoxious to popular odium on the other. In such cases, ought the liberty or the property of a citizen, so far as he claims the same under the Constitution or laws of the United States, to be decided before a State court, without an appeal to the Supreme Court of the United States, on whom the construction of this very Constitution and these laws has been conferred, in all cases, by the Constitution?
The Supreme Court, considering the elevated character of its judges, and that they reside in parts of the Union remote from each other, can never be liable to local excitements and local prejudices. To that tribunal our citizens can appeal with safety and with confidence (as long as the 25th section of the judicial act shall remain upon the statute book) whenever they consider that their rights, under the Constitution and laws of the United States, have been violated by a State court. Besides, should this section be repealed, it would produce a denial of equal justice to parties drawing in question the Constitution, laws, or treaties of the United States. In civil actions, the plaintiff might then bring his action in a Federal or State court, as he pleased, and as he thought he should be most likely to succeed; whilst the defendant would have no option, but must abide the consequences without the power of removing the cause from a State into a Federal court, except in the single case of his being sued out of the district in which he resides; and this, although he might have a conclusive defence under the Constitution and laws of the United States.
Another reason for preserving this section is, that without it there would be no uniformity in the construction and administration of the Constitution, laws, and treaties of the United States. If the courts of twenty-four distinct, sovereign States, each possess the power, in the last resort, of deciding upon the Constitution and laws of the United States, their construction may be different in every State of the Union. That act of Congress which conforms to the Constitution of the United States, and is valid in the opinion of the supreme court of Georgia, may be a direct violation of the provisions of that instrument, and be void in the judgment of the supreme court of South Carolina. A State law in Virginia might in this manner be declared constitutional, whilst the same law, if passed by the Legislature of Pennsylvania, would be void. Nay, what would be still more absurd, a law or treaty of the United States with a foreign nation, admitted to be constitutionally made, might secure rights to the citizens of one State, which would be denied to those of another. Although the same Constitution and laws govern the Union, yet the rights acquired under them would vary with every degree of latitude. Surely the framers of the Constitution would have left their work incomplete, had they established no common tribunal to decide its own construction, and that of the laws and treaties made under its authority. They are not liable to this charge, because they have given express power to the Judiciary of the Union over “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”
The first Congress of the United States have, to a considerable extent, carried this power into execution by the passage of the judicial act, and it contains no provision more important than the 25th section.
This section ought not to be repealed, because, in the opinion of the minority of the Committee on the Judiciary, its repeal would seriously endanger the existence of this Union. The chief evil which existed under the old confederation, and which gave birth to the present Constitution, was that the General Government could not act directly upon the people, but only by requisition upon sovereign States. The consequence was, that the States either obeyed or disobeyed these requisitions, as they thought proper. The present Constitution was intended to enable the Government of the United States to act immediately upon the people of the States, and to carry its own laws into full execution, by virtue of its own authority. If this section were repealed, the General Government would be deprived of the power, by means of its own judiciary, to give effect either to the Constitution which called it into existence, or to the laws and treaties made under its authority. It would be compelled to submit, in many important cases, to the decisions of State courts; and thus the very evil which the present Constitution was intended to prevent would be entailed upon the people. The judiciary of the States might refuse to carry into effect the laws of the United States; and without that appeal to the Supreme Court which the 25th section authorizes, these laws would thus be entirely annulled, and could not be executed without a resort to force.
This position may be illustrated by a few striking examples. Suppose the Legislature of one of the States, believing the tariff laws to be unconstitutional, should determine that they ought not to be executed within its limits. They accordingly pass a law, imposing the severest penalties upon the collector and other custom-house officers of the United States within their territory, if they should collect the duties on the importation of foreign merchandise. The collector proceeds to discharge the duties of his office under the laws of the United States, and he is condemned and punished before a State court for violating this State law. Repeal this section, and the decision of the State court would be final and conclusive; and any State could thus nullify any act of Congress which she deemed to be unconstitutional.
The Executive of one of the States, in a message to the Legislature, has declared it to be his opinion, that the land belonging to the United States within her territory is now the property of the State, by virtue of her sovereign authority. Should the Legislature be of the same opinion, and pass a law for the punishment of the land officers of the United States who should sell any of the public lands within her limits, this transfer of property might be virtually accomplished by the repeal of the 25th section of the judicial act. Our land officers might then be severely punished, and thus prohibited by the courts of that State from performing their duty under the laws of the Union, without the possibility of redress in any constitutional or legal form. In this manner, the title of the United States to a vast domain, which has cost the nation many millions, and which justly belongs to the people of the several States, would be defeated or greatly impaired.
Another illustration might be introduced. Suppose the Legislature of Pennsylvania, being of opinion that the charter of the Bank of the United States is unconstitutional, were to declare it to be a nuisance, and inflict penalties upon all its officers for making discounts or receiving deposits. Should the courts of that State carry such a law into effect, without the 25th section there would be no appeal from their decision; and the Legislature and courts of a single State might thus prostrate an institution established under the Constitution and laws of the United States.
In all such cases, redress can now be peaceably obtained in the ordinary administration of justice. A writ of error issues from the Supreme Court, which finally decides the question whether the act of Congress was constitutional or not; and if they determine in the affirmative, the judgment of the State court is reversed. The laws are thus substituted instead of arms, and the States kept within their proper orbits by the judicial authority. But if no such appeal existed, then, upon the occurrence of cases of this character, the General Government would be compelled to determine whether the Union should be dissolved, or whether there should be a recurrence to force—an awful alternative, which we trust may never be presented. We will not attempt further to portray the evils which might result from the abandonment of the present judicial system. They will strike every reflecting mind.
It has of late years been contended that this section of the judicial act was unconstitutional, and that Congress do not possess the power of investing the Supreme Court with appellate jurisdiction in any case which has been finally decided in the courts of the States. It has also been contended that, even if they do possess this power, it does not extend to cases in which a State is a party. On this branch of the question, we would refer the House to the very able and conclusive argument of the Supreme Court of the United States, in the cases of Martin vs. Hunter’s Lessee (1st Wheaton, 304) and Cohens vs. the State of Virginia (6 Wheaton, 264) by which the affirmative of these propositions is clearly established. It may be proper, however, that we should make a few observations upon this part of the question. Those who have argued in favor of these positions, assert that the general words of the Constitution, extending the judicial power of the Union “to all cases, in law and equity,” arising under the Constitution and laws of the United States, ought, by construction, to be restricted to such cases in law and equity as may originate in the courts of the Union. They would thus establish a limitation at war with the letter, and, in our opinion, equally at war with the spirit of the instrument. Had such been the intention of the framers of the Constitution, they well knew in what language to express that intention. Had it been their purpose to restrict the meaning of the general language which they had used in the first clause of the section, they could have done so with much propriety in the second. This clause, after providing “that, in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction,” proceeds to declare “that, in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” On the supposition contended for, it is wholly unaccountable that the framers of the Constitution did not limit the natural effect of the words used in the first clause, by making the second to read “that, in all the other cases before mentioned,” arising in the inferior courts of the United States, “the Supreme Court shall have appellate jurisdiction.” But no such restriction exists; and, from the fair import of the words used in both clauses, the Supreme Court possess the power of finally deciding “all cases, in law and equity,” arising under the Constitution, the laws, and the treaties of the United States, no matter whether they may have originated in a Federal or in a State court, and no matter whether States or individuals be the parties.
But it is not our intention to enter into a protracted constitutional argument upon the present occasion, because this question has long since been put at rest, if any constitutional question can ever be considered as settled in this country. The Federalist, which is now considered a text-book in regard to the construction of the Constitution, and deservedly so, as well from the great merit of the work as the high character of its authors, is clear and explicit on this subject. After reasoning upon it at some length, the author of the 83d number of that production arrives at the following conclusion: “To confine, therefore, the general expressions which gave appellate jurisdiction to the Supreme Court to appeals from the subordinate Federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.”
The Federalist, it will be recollected, was written between the formation of the Constitution and its adoption by the States. Immediately after its adoption, Congress, by passing the 25th section of the judicial act, now sought to be repealed, fully confirmed this construction. This appellate jurisdiction has ever since been exercised by the Supreme Court in a great variety of cases; and we are not aware that the constitutionality of its exercise has ever been questioned by the decision of any State court, except in a single instance, which did not occur until the year 1815. And even in that case (Hunter vs. Fairfax), the judgment of the Supreme Court was carried into effect according to the existing law, without endangering the peace of the country.
The last topic to which we would advert is, the claim which has been set up to exempt the judgments obtained by the States of this Union, before their own courts, in civil and criminal suits, prosecuted in their name, from being reviewed by the Supreme Court of the United States upon a writ of error. Much stress has been laid by those who sustain this claim, upon the general proposition that a sovereign independent State cannot be sued, except by its own consent. But does this proposition apply, in its extent, to the States of this Union. That is the question for discussion.
We have in this country an authority much higher than that of sovereign States. It is the authority of the sovereign people of each State. In their State conventions they ratified the Constitution of the United States; and so far as that Constitution has deprived the States of any of the attributes of sovereignty, they are bound by it, because such was the will of the people. The Constitution, thus called into existence by the will of the people of the several States, has declared itself, and the laws and treaties which should emanate from its authority, to be “the supreme law of the land;” and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Why, then, should a State, who has obtained a judgment in her own courts against an individual, in violation of this “supreme law of the land,” be protected from having her judgment reversed by the Supreme Court of the United States? Is there any reason, either in the Constitution or in natural justice, why judgments obtained by a State in her own courts should be held sacred, notwithstanding they violated the Constitution and laws of the Union, which would not apply, at least with equal force, in favor of individual plaintiffs? The Constitution subjects to the review of the Supreme Court all cases in law or equity arising under itself, or the laws of the Union. It excepts no case bearing this character. Whether the party be a State or an individual, all must alike bow to the sovereign will of the people, expressed in the Constitution of the United States.
In suits brought by a State against an individual in her own courts, there is much greater danger of oppression, considering the relative power and influence of the parties, than there would be in controversies between individuals. And are these to be the only cases selected, in which the citizen shall not be permitted to protect himself by the Constitution and laws of the Union before the Supreme Court of the United States? Is it not sufficient that, under the Constitution, the States cannot be sued as defendants, without adding to this, by a strained and unnatural construction, the additional privilege that the judgments which they may obtain as plaintiffs or prosecutors before their own courts, whether right or wrong, shall in all cases be irreversible?
We will not repeat the considerations which have been already urged to prove that, unless this provision of the Constitution applies to the States, the rights of individuals will be sacrificed, all uniformity of decision abandoned, and each one of the States will have it in her power to set the Constitution and laws of the United States at defiance.
The eleventh amendment to the Constitution of the United States interferes in no respect with the principles for which we have contended. It is in these words:
“The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”
Chief Justice Marshall, in delivering the opinion of the court in the case of Cohens vs. Virginia, has given so clear, and in our opinion, so correct an exposition of the true construction of the amendment, that we shall, in conclusion, present to the House a few extracts from that opinion, instead of any argument of our own. He says that “the first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt, in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relation between the whole and its parts, as to strip the Government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation. The words of the amendment appear to the court to justify and require this construction.
“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand a process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the States before the amendment was introduced into Congress, and others might be commenced before it should be adopted by the State Legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the Constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State, by the citizens of another State. If a suit, brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a State. It is clearly, in its commencement, the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defence against a claim made by a State.
“Under the judiciary act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not, in any manner, act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court for the sole purpose of inquiring whether the judgment violates the Constitution or laws of the United States can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State, whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it, of any description, is asserted or prosecuted. The party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper, where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendant; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union.
“The only part of the proceeding which is in any manner personal is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him: but this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause.
“The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits; yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court.
“It is, then, the opinion of the court that the defendant who removes a judgment rendered against him by a State court into this court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State, whatever may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing which he demands.”
All which is respectfully submitted.
JAMES BUCHANAN, WM. W. ELLSWORTH, E. D. WHITE.
It was Mr. Buchanan’s intention to retire from public life at the close of this session of Congress in March, 1831. But in the early part of February, without his previous knowledge, a movement was set on foot in Pennsylvania to bring him forward as the candidate of that State for the Vice-Presidency at the next election, on the ticket with General Jackson, whose re-election to the Presidency was already anticipated by his party. As soon as information of this purpose reached Mr. Buchanan, he did what he could to discourage it, as will appear from the following letter to one of his Pennsylvania friends and neighbors:
[JAMES BUCHANAN TO GEORGE PLITT, ESQ.]
WASHINGTON, February 18, 1831.
DEAR SIR:—
I received your kind letter of the 7th instant and the Chester County Democrat of the 8th by the same mail; and I confess the information which they contained was wholly unexpected. I can say nothing upon the subject to which they refer, unless it be to express a profound and grateful sense of the kindness and partiality of those of my friends in Chester County who would elevate me to a station to which I have never aspired. I cannot flatter myself, for a single moment, that the people of the State will respond to a nomination which I feel has been dictated in a great degree by personal friendship; and I shall retire to private life, after the close of the present session, without casting one lingering look behind. As a private citizen I shall always remember with the deepest sensibility the many favors which I have received from the people of the district whom I have so long represented, perfectly convinced that they have already bestowed upon me quite as many honors as I have ever deserved.
I sent you by yesterday’s mail a copy of the correspondence between the President and Vice-President. Its publication has not produced the sensation here which was expected. I think it will not injure General Jackson in the estimation of his friends in Pennsylvania. Its effect, however, will be still more to divide the personal friends of Mr. Crawford and Mr. Calhoun.
The speech which I made upon Peck’s trial will probably not appear until a full report of the case shall be published. The commendations which have been bestowed upon it, both here and elsewhere, have been of a character so far beyond its merits that I fear the public will be disappointed upon the appearance in print.
I would suggest to you the propriety of considering this letter confidential so far as it regards myself. The subject is of a nature so delicate, and anything I can say upon it is so liable to misconstruction, that I should not have answered your letter, had I not felt that you have always deserved my friendship, and that I might rely with confidence on your discretion.
From your friend,
JAMES BUCHANAN.
P. S.—What is now the state of anti-masonry in your county?
The truth is that a longer continuance in public life did not accord with Mr. Buchanan’s plans. His professional income had fallen to the low rate of about $2000 per annum, and he determined to restore it to what it had previously been, and to take his chances for raising it still higher.
He had many qualifications for great success at the bar: competent learning, untiring industry, a ready and pleasing address, an uncommon reasoning power, and a reputation of perfect integrity. Had he been impelled by the wants of a family to devote himself exclusively to his profession, there can be no doubt that he would have risen in it to great eminence. His talents were not of that order which would have enabled him to unite in his own person the very different functions of a statesman and a lawyer; a union which has been exhibited in a very marked manner by only one person in America, and perhaps by no one in England. But my estimate of Mr. Buchanan’s abilities leads me to say, that if he had not at this period of his life been again drawn into a political career, he would have ranked among the first lawyers of his time. He must have soon encased in the forensic discussion of constitutional questions. He had very early imbibed a deep reverence for the Constitution of the United States, and his turn of mind would have adapted him to the handling of questions such as were then arising and are likely long to arise upon its interpretation. As he grew older and his sphere of professional employment became widened, he must have been found at the bar of the Supreme Court of the United States, if not as the peer of Webster and Pinkney, at least as the peer of many against whom those great advocates had to put forth their strength. But from such a professional career Mr. Buchanan was drawn away, not by the prospect of the Vice-Presidency, but by the unexpected offer of the mission to Russia, an account of which will be found in the next chapter.
[FROM GEORGE W. BUCHANAN.]
PITTSBURGH, March 4, 1830.
DEAR BROTHER:—
I am much pleased to observe from the U. S. Telegraph of the 25th ultimo that you have taken a manly stand on the constitutional side of the Indian question. In this pleasure there is no doubt a spice of personal vanity, as your sentiments, so far as they can be inferred from the debate, are in perfect accordance with my own. It is a question which has produced an unaccountable excitement in our city. Every word on the subject is devoured with wonderful avidity; and I can assure you that you did not put too high an estimate on public feeling when you moved for the printing of ten thousand copies of the report. As public opinion is yet unsettled, it is important that the report of the committee, if temperate and decided, should have an extensive circulation.
I have read your speech on the Judiciary with great interest and advantage. The legal gentlemen in our city have highly complimented both its style and research. The best evidence of its effect is, that all those with whom I have conversed on the subject are decidedly in favor of your bill.
Anti-masonry is still flourishing. I do not know the state of feeling in the eastern section of Pennsylvania, but I am now perfectly convinced that no western county will return a mason to the next Legislature. Strong, however, as anti-masonry is, much of its apparent strength is borrowed from extrinsic circumstances. In this city, for instance, many persons are anxious to be rid of a set of rulers who have managed with so much political dexterity as to control the destinies of this county for many years. These men happen to be masons. No other hobby could be mounted with the same prospect of success. The honest anti-masons, the old Adams men, and the disappointed office-seekers are easily induced to unite their influence against the “powers that be.” The motley materials are thus thrown into one caldron and stirred up into a dangerous compound. These remarks I have made to account for the extraordinary strength of anti-masonry in this quarter......
I am obliged to you for the salutary counsel contained in your last letter. I believe that a whole volume of advice (both moral and political) is contained in that single direction, “Be wise as the serpent, but harmless as the dove.” ...... My health is very good.
Your grateful and affectionate brother,
GEO. W. BUCHANAN.
It appears, however, that a meeting was held at Lancaster in March, at which he was nominated for the Vice-Presidency, with what effect may be learned from the following letters written by his brother George from Pittsburgh:
[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]
PITTSBURGH, March 23, 1831.
DEAR BROTHER:—
I have just read with great pleasure the proceedings of the Lancaster meeting which nominated you for the Vice-Presidency. Whether success shall crown the exertions of your friends or not, no public man can receive so flattering and precious a testimonial as the unanimous and unsolicited voice of his neighbors and acquaintances. In this part of the State, the idea seems to take very well. Both this county and Washington will, I think, hold meetings in your favor. I saw the editor of the Manufacturer this morning and ascertained that he will be disposed to take a prominent part. The Democrat will probably not be unfavorable. The editor, however, is a very timid creature.
On Thursday last I was so unfortunate as to fall and break my arm. The pain has subsided in a great degree, and I think that my arm will be restored in a short time to its wonted strength and action. I can now attend to any business that does not require the use of both hands.
I write under a feeling of great inconvenience, and will therefore close.
Your grateful and affectionate brother,
GEO. W. BUCHANAN.
PITTSBURGH, April 29, 1831.
DEAR BROTHER:—
I have been absent from home in attendance upon a sale of United States property at Uniontown for a week past. I succeeded in effecting a very good disposition of the property. The Government, I have no doubt, will approve my proceedings.
I find that in every county in which I have been, your nomination for the Vice-Presidency is very popular. In Fayette and Washington there will scarcely be a division of sentiment. Still, however, it is thought proper to suspend all public proceedings in your favor till the time of holding their regular Democratic meetings in the summer. That course will also be adopted in this county. Every leading Jackson politician here, with the exception of one or two Ingham men, is favorable to your nomination. It will, however, be probably better to wait for a further expression of public opinion at the regular meetings of the party throughout the State. I observe that in the Kentucky Gazette your name is placed on the Democratic ticket, under General Jackson’s.
It is believed here that the appointment of Attorney-General has been tendered to you. If so, I hope that you will accept it. It is a most honorable station, and free from that abuse which attaches to the Secretaryships. Will Van Buren be a candidate for the Vice-Presidency?
My arm is not yet so far restored as to be of any use. I trust, however, that the weakness is only of a temporary nature. My health, in other respects, is good.
I am your grateful brother,
GEO. W. BUCHANAN.
Mr. Buchanan returned to Lancaster after this meeting had been held. His nomination to the Vice-Presidency continued to be agitated in other parts of Pennsylvania, and in June a great meeting of the supporters of General Jackson was held at Williamsport, of which George Buchanan gives the following account:
[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]
PITTSBURGH, June 15, 1831.
DEAR BROTHER:—
I arrived here on Thursday. The heat was so oppressive on horseback that I sold my horse at Bellefonte, and returned in the stage. The journey has, in a very great degree, restored my health.
The Jackson meeting at Williamsport was an exceedingly respectable one. Fifteen counties were represented. There can be no doubt that you were the Pennsylvanian to whom the resolution respecting the Vice-Presidency was intended to point. I have every reason to believe that your name would have been inserted by an almost unanimous vote, if Mr. Potter, from Centier, had not been detained at home by the illness of his wife. He would have offered a resolution nominating you; and I can say, from information of the most undoubted credit, that at least two-thirds of all the jurors would have warmly sustained it. Mr. Ward, editor of the Susquehanna Register, and Mr. Youngman, editor of the Union Times, with both of whom I became intimately acquainted, are decidedly favorable to your nomination. They are intelligent young men, and have, in a warm and flattering manner, solicited my correspondence.
In the Western country, I find that the Ingham faction is extremely weak. Out of Bradford County, and apart from their family connections, they appear to have no friends in the West. The people in our district speak very favorably of Mr. Muhlenburg as the next Governor, and, I assure you, I did nothing to discountenance that feeling. The popularity of the present Governor has been injured by the appointment of General McKean, the proposition to tax coal, and the character of certain county appointments. The resolution adopted at our meeting, and opposing General Jackson’s course in the Cabinet affair, was intended as a direct censure upon Messrs. Ingham, &c. Owing to the relation I bore to you and to General Jackson, I determined to take no active part in the meeting.
I should like very much to see you and hold a long conversation on matters and things. In July I shall endeavor to visit Franklin County, and, if you should be unable to meet me there, I will extend my journey to Lancaster.
Governor Wolf left our city this morning for Erie. He was here at the time of my arrival, and, in company with several ladies and gentleman, I escorted him to Economy. He was exceedingly well received by the people of that singular village. His plain manners and German language endeared him very much to Raff and his whole Society. The Governor treated me with great attention, and evinced a disposition to be very familiar. His daughter, however, pleased my fancy much more than the old gentleman himself. She is a very interesting lady, and has well nigh stolen my heart.
I observe that the newspapers are determined to give you some office. They now make you Minister to Russia. Is this report true? If so, it will then become your duty to consider what sort of a Secretary your brother George would make. It would be a very interesting time to visit Europe.[25]
I remain your grateful and affectionate brother,
GEO. W. BUCHANAN.
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Footnote 23:
Mr. Buchanan’s speech extended through two sessions of the Committee of the Whole. After some amendments by the Senate, the bill was finally passed, and was approved by the President May 19, 1828. The speech may be found in Gales & Seaton’s Register of Debates, Vol. IV, Part 2, page 2089, et seq.
Footnote 24:
Mr. Buchanan’s proposal was not adopted, and on the 2d of March, 1829, the President, Mr. Adams, approved “An act for the continuation of the Cumberland Road.” Mr. Buchanan voted against this bill, saying that he did so reluctantly, but that now the House had voted to keep the Cumberland Road in repair, by erecting toll-gates upon it under the authority of the Federal Government, and so long as this pretension continued to be set up, he would not vote for the construction of any road intended, after its completion, to be thus placed under the jurisdiction of the United States, as he believed it to be entirely unconstitutional.
Footnote 25:
This allusion to the Secretaryship of the Russian Mission was, of course, merely playful. George Buchanan had no thought of seeking this appointment, nor would his brother have asked for it.
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