Chapter V (2)

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.