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.
CHAPTER 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.
-----
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.
-----
CHAPTER VII.
1831–1833.
JOHN RANDOLPH OF ROANOKE MADE MINISTER TO RUSSIA—FAILURE OF MR.
RANDOLPH’S HEALTH—THE MISSION OFFERED TO MR. BUCHANAN—HIS
MOTHER’S OPPOSITION TO HIS ACCEPTANCE—EMBARKS AT NEW YORK AND
ARRIVES AT LIVERPOOL—LETTERS FROM ENGLAND—JOURNEY TO ST.
PETERSBURG—CORRESPONDENCE WITH FRIENDS AT HOME.
After General Jackson became President in March, 1829, he determined to
offer the Mission to Russia to “John Randolph of Roanoke.” This offer
was made in September of that year, and was then accepted; but the
nomination was not submitted to the Senate until the following May. It
was confirmed without opposition from any quarter.[26] Before he sailed,
Mr. Randolph had leave granted him by the President to spend the
following winter in the south of Europe, if the state of his health
should require it. He remained at St. Petersburg only long enough to be
accredited. His constitution was too far impaired to admit of his
encountering the rigors of a Russian winter. He left the affairs of the
legation in the hands of Mr. Clay, the Secretary, and went to England.
In his annual message in December (1830), the President communicated to
Congress the fact of Mr. Randolph’s necessary absence from his post, on
leave, and said that the public interests in that quarter would still be
attended to by the Minister, through the Secretary. When the annual
appropriation bill came before the House of Representatives in January
(1831), a long and acrimonious discussion took place upon a motion to
strike out the salary of the Minister to Russia. It was contended that
the Mission was actually, if not technically, vacant; and it was charged
that the appointment of Mr. Randolph, with the understanding that he
might leave his post at his own discretion, was a “job.” To this it was
answered by the friends of the Administration that the responsibility
for his appointment lay with the President and the Senate; that in the
Senate the opposition entirely approved of the appointment; and that for
the House to refuse to pay the salary of a Minister because he was
absent from his post on leave given by the President, would be highly
improper. In the course of this debate, Mr. Buchanan made a temperate
and judicious speech, in which he defended the appointment. The result
was that the appropriation was retained in the bill and the bill was
passed.[27]
It became necessary, however, in the spring of this year, for the
President to recall Mr. Randolph and to select his successor. In those
days, the public men of the country did not propose themselves for such
appointments. The first intimation that reached Mr. Buchanan of the
President’s wish to make him Minister to Russia, came to him in a letter
from a confidential friend of the President.
[MAJOR EATON TO MR. BUCHANAN.]
(Private.) WASHINGTON, May 31, 1831.
DEAR SIR:—
Where are you, and what doing? I cannot tell, having heard nothing from
you since the adjournment of Congress. That you are doing well, though,
I have no doubt and earnestly hope.
I introduce myself to you now at the request and by the direction of the
President. The Mission to St. Petersburg is expected shortly to become
vacant. It will afford the President pleasure to confide this trust to
you, if it shall suit your convenience to accept it. He desires me to
make known his wishes to you and to solicit an answer. It is at the
present an important and a highly interesting part of the world. For
reasons not material now to be explained, the President desires that you
will consider this communication entirely of a confidential character.
With great respect,
J. H. EATON.
[MR. BUCHANAN TO MAJOR EATON.]
LANCASTER, June 4, 1831.
DEAR SIR:—
I received your letter last evening, offering me, “by the direction of
the President,” the Mission to St. Petersburg. I feel with the deepest
sensibility this pledge of the kindness of the President, and the
recollection of it shall ever be engraven on my grateful memory. My
attachment for him, both personal and political, has been of the warmest
character, and he has now engrafted upon that feeling a strong sense of
individual gratitude.
There is but a single circumstance which induces me to doubt whether I
ought to accept the Mission. I wish to be placed in no public station in
which I cannot discharge my duty with usefulness to the country and
honor to the administration of General Jackson. Ignorant as I now am of
the French language, I doubt whether I could acquire a sufficient
knowledge of it in proper time to enable me to hold that free communion
with the political circles in St. Petersburg which I consider essential
to the able discharge of the duties of a foreign minister. I have much
business now on hand which I could not immediately leave without doing
serious injury to individuals who have confided in me. Will you be so
kind as to inform me at what time the President would think the public
interest required me to leave the country in case I should accept the
Mission?
Please to remember me to the President in the strongest terms. Accept my
thanks for your uniform kindness, and present my respects to Mrs. Eaton.
I remain
Sincerely your friend,
JAMES BUCHANAN.
[EATON TO BUCHANAN.]
(Private.) WASHINGTON CITY, June 7, 1831.
DEAR SIR:—
I have just received your letter, and will show it to the President,
whom I shall see during the day. The difficulty you suggest can no doubt
be remedied. Mr. R. is not expected to return before July or August; it
would then be too late in the season to reach St. Petersburg by water
transportation. To depart in September would create the necessity of
travelling over land from Hamburg or Havre. This, I am confident, the
President would not ask of you. I feel satisfied that he will grant the
indulgence asked and defer your departure until next spring. But I will
see him, and if I be wrong in this, I will again write you to-morrow;—if
no letter come, you may understand by the silence that my suggestions
are approved by the President.
Very truly yours,
J. H. EATON.
P. S. I will write to you to-morrow or the next day, _at any rate_.
3 _o’clock_. I sent your letter to the President. In answer he thus
writes: “Say to Mr. Buchanan that he will not be required to go out
before next winter or spring, that he may reach St. Petersburg on the
breaking up of the ice—unless something more than is now expected
arises, when the President will rely upon Mr. Buchanan’s patriotism to
proceed. He will have sufficient time to arrange his affairs.”
[BUCHANAN TO EATON.]
LANCASTER, June 12, 1831.
DEAR SIR:—
After the receipt of your last kind letter of the 7th inst., with the
extract from the President’s note to you annexed, granting me all the
indulgence I could have desired, I can no longer hesitate to accept the
Russian Mission. I fear that the necessary arrangements, both of a
professional and private character, which I must soon begin to make
preparatory to leaving the country—together with the study of the French
language, which I intend to commence—may disclose the fact that this
Mission has been offered to me and accepted. Indeed, from the
publications in the newspapers it was believed by many before I had any
intimation that such an intention existed on the part of the President.
Is there any reason why I should for the present defer these
preparations?
Please to present my grateful compliments to the President, and believe
me to be
Sincerely your friend,
JAMES BUCHANAN.
Hon. JOHN H. EATON.
[EATON TO BUCHANAN.]
WASHINGTON, June 15, 1831.
DEAR SIR:—
On receiving your letter this morning I referred it to the President,
and he has returned me a hasty note, which I enclose to you. It is quite
like himself, candid and frank.
With great regard, yours,
J. H. EATON.
[EATON TO JACKSON.]
DEAR SIR:—
I send you a letter to-day received from Mr. Buchanan. What shall I say
to him?
Yours,
J. H. EATON.
[JACKSON TO EATON.]
DEAR SIR:—
Say to him in reply, to go on and make his preparations and let the
newspapers make any comments that they may think proper, and mind them
not. It is only necessary that _he_ should not give them any information
on this subject—the journals will say what they please, and be it so.
Yours,
A. J.
[LIVINGSTON TO BUCHANAN.]
(Private.) WASHINGTON, August 2, 1831.
MY DEAR SIR:—
Mr. Taney having given me your letter of the 26th July, with a request
that I would communicate it to the President, I did so; and he has
directed me to say that it was not deemed proper to make the offer of
the Russian Mission public until Mr. Randolph’s return should make the
place vacant, and that when that event happened he would direct me to
write to you.
The former communications were made to you while I was confined to my
bed, and did not pass through my Department, or they would have been put
in a shape that would have spared you any embarrassment on the subject.
I am, my dear Sir, with the greatest regard and esteem,
Your friend and humble servant,
EDW. LIVINGSTON.[28]
[TANEY TO BUCHANAN.]
(Confidential.) WASHINGTON, August 2, 1831.
MY DEAR SIR:—
I received your letter and immediately waited on Mr. Livingston, and
placed it in his hands, requesting him to ascertain whether your
appointment and acceptance might not at once be made public. Mr.
Livingston informed me to-day that he had seen the President, and that
the only reason for desiring that nothing should be said about it was
that Mr. Randolph had not yet returned, and that he did not wish that
your appointment should be formally made and publicly announced until
Mr. Randolph arrived in this country. The Secretary of State will,
however, write to you himself to-day. I omitted to ask him when Mr.
Randolph was expected, but he will probably mention the time in his
letter to you. I can readily imagine that the present state of things
may be rather embarrassing to you, and hope it will not be long before
an appointment which I am quite sure will give great satisfaction to our
friends, can be officially made known.
Mr. Livingston intends to go to New York in the course of this week in
order to have a conference with Mr. McLane and Mr. Van Buren before the
latter sails for England. He will leave Washington on Thursday, unless
he should learn in the mean time that Mr. McLane is on his way to this
place. And as an interview with him on your affairs would, I presume, be
agreeable to you, perhaps you may make it convenient to meet him in New
York. Governor Cass has accepted the appointment of Secretary of War,
and was to leave home on the first of this month, and expected to be
here before the 15th.
Wishing you, my dear Sir, a pleasant excursion, and regretting that my
engagements here will prevent me from joining you at Saratoga, I am
Most truly your friend and obedient servant,
R. B. TANEY.