The first debate in which Mr. Buchanan took part related to a bill, introduced by General Smith of Maryland, making appropriations for the Military Establishment. This discussion, which took place on the 9th and 11th of January, 1822, was an excited one, from the inner motive of the opposition to the bill, which was aimed at the supposed aspirations of Mr. Calhoun, the Secretary of War. In reference to the Secretary Mr. Buchanan said: “I have no feeling of partiality for the Secretary of War, nor of prejudice against him. I view him merely as a public character, and, in that capacity, I conscientiously believe that he has done his duty.” After a sharp reply from Mr. Randolph, the bill was passed by a very large majority, the members of the so-called “Radical” party alone voting against it. There very soon occurred another debate which is of greater importance, since it marks the direction which Mr. Buchanan’s mind was beginning to take on the subject of Federal powers and State Rights. This was the occasion of the introduction of a Bankrupt bill.
Prior to this time, Congress had but once exercised the constitutional power “to establish uniform laws on the subject of bankruptcies throughout the United States.” This was in the Bankrupt law of 1800, which was repealed in 1804. Of the power of Congress to legislate on the subject of “bankruptcy” there can of course be no doubt, since it is expressly conferred. But there has always been a doubt respecting the true construction of the terms “bankruptcy” and “bankrupt.” Following the English system, the Act of 1800 rejected the idea that these terms include all “insolvents,” of all occupations, and confined the meaning to “traders,” or mercantile insolvents. Here, therefore, was one very serious question in interpretation to be encountered; for although the measure, of which some account is now to be given, contemplated, as it was first introduced, none but commercial insolvents, it finally turned upon an amendment which would have made it applicable to all classes of insolvent debtors. In either aspect, too, it brought into view the contrasted functions of the Federal and the State courts, in the enforcement and collection of private debts.
The close of the war, in 1815, was followed by extensive financial embarrassment among the commercial classes. The merchants of Philadelphia suffered severely during the five years which succeeded the peace, and it was by one of their Representatives, Mr. John Sergeant, that a bankrupt bill, retrospective as well as prospective in its operation, was introduced in the House, on the 11th of December, 1821. On the 22d of January, 1822, the debate was opened by Mr. Sergeant, as Chairman of the Judiciary Committee. His speech was exceedingly able, and even pathetic, for he spoke for a large class of ruined men. The discussion continued until the 12th of March, Mr. Sergeant standing almost alone in advocacy of the bill, in opposition to George Tucker and Philip P. Barbour of Virginia, and to Mr. Lowndes of South Carolina. The latter, although opposed to the bill, did not accord with the strict constructionists of Virginia. Thus far, the proposed measure included only commercial insolvents. But on the 12th of March, a member from Kentucky offered an amendment that included all insolvent debtors, which was adopted. This, of course, changed the aspect of the whole subject, and whether so intended or not, finally defeated the bill. Mr. Buchanan spoke in opposition to the bill on the day the amendment was adopted. He did not question the power of Congress to pass a bankrupt law. Nor did he contend that the “bankruptcy” referred to in the Constitution, necessarily included only commercial insolvents. But there is very perceptible in his speech on this occasion a tendency to that line of politics which he afterwards adopted and always adhered to, and which may be described as a forbearance from exercising Federal powers of acknowledged constitutional validity, in modes and upon occasions which may lead to an absorption of State jurisdictions. Thus he said: “The bill, as it stood before the amendment, went far enough. It would, even then, have brought the operation of the law and the jurisdiction of the Federal Courts into the bosom of every community. The bill as it now stands will entirely destroy the symmetry of our system, and make those courts the arbiters, in almost every case, of contracts to which any member of society who thinks proper to become a bankrupt may be a party. It will at once be, in a great degree, a judicial consolidation of the Union. This was never intended by the friends of the Constitution...... The jurisdiction of Federal Courts is now chiefly confined to controversies existing between the citizens of different States. This bill, if it should become a law, will amount to a judicial consolidation of the Union.”
Of the general tenor of this sweeping measure, Mr. Buchanan said:
“Let a bankrupt be presented to the view of society, who has become wealthy since his discharge, and who, after having ruined a number of his creditors, shields himself from the payment of his honest debts by his certificate, and what effects would such a spectacle be calculated to produce? Examples of this nature must at length demoralize any people. The contagion introduced by the laws of the country would, for that very reason, spread like a pestilence, until honesty, honor, and faith will at length be swept from the intercourse of society. Leave the agricultural interest pure and uncorrupted, and they will forever form the basis on which the Constitution and liberties of your country may safely repose. Do not, I beseech you, teach them to think lightly of the solemn obligation of contracts. No government on earth, however corrupt, has ever enacted a bankrupt law for farmers; it would be a perfect monster in this country, where our institutions depend altogether upon the virtue of the people. We have no constitutional power to pass the amendment proposed by the gentleman from Kentucky; and if we had, we never should do so, because such a provision would spread a moral taint through society which would corrupt it to its very core.”
The next important discussion in which Mr. Buchanan took part was on a bill relating to the Cumberland Road. Before he entered Congress, a national turnpike had been built by the Federal Government, extending from Cumberland in the State of Maryland to Wheeling in the State of Virginia. It crossed a narrow part of Maryland, passed through a corner of Pennsylvania, and touched but a small part of Virginia. The principal interest felt in this work was in the Western States. It encountered much opposition in Pennsylvania, where a turnpike road had been built, under State authority, from Philadelphia to Pittsburgh, which was kept in repair by tolls, and which paid a small dividend to its stockholders. A national road, supported by the Federal Government, and taking the travel from the Pennsylvania road was considered in that State as a grievance. Moreover, whenever the question of appropriating money for the continued support of this national road, or the alternative of imposing tolls, arose in Congress, the question of constitutional power to establish such means of communication necessarily arose at every stage of the legislation. That legislation is of interest now, inasmuch as the course taken by Mr. Buchanan illustrates the development of his opinions upon the constitutional question.
Of the last appropriation for continuing the Cumberland Road, there remained a balance in the Treasury of less than $10,000. In the General Appropriation Bill of this session (1822), provision was made for the repair of the road. A member from New Jersey moved to increase the amount. On this amendment there was an animated discussion, in which Mr. Buchanan appears to have considered that this public work was so beneficial to the general prosperity of the Union, that Congress might well appropriate the money needed for its support. “The truth is,” he said, “we are all so connected together by our interests, as to place us in a state of mutual dependence upon each other, and to make that which is for the interest of any one member of the Federal family beneficial, in most instances, to all the rest. We never can be divided without first being guilty of political suicide. The prosperity of all the States depends as much upon their Union, as human life depends upon that of the soul and body.” It is quite obvious that this kind of reasoning was, however true in the general, too broad and sweeping to justify the appropriation of money from the Federal Treasury for a public work which could claim no other than an incidental and remote relation to the prosperity of all the States. Every appropriation of money by Congress must rest upon some specific power of the Federal Constitution; and although Congress has a specific power “to regulate commerce among the several States,” and while it may be admitted that commerce includes intercourse, it has been from the first, and still is, a serious question whether this grant of the power of commercial regulation includes a power to establish and maintain the means by which commerce is carried on, and by which intercourse may be facilitated, unless such means fall within the designation of “post-roads,” and are established, primarily at least, for the transmission of mails. The appropriation proposed for the continued support of the Cumberland Road failed, and then came the question, in a separate bill, of imposing tolls for the support of the road. Mr. Buchanan voted for this bill, as did most of his colleagues from Pennsylvania, and it passed both Houses. But on the 4th of May (1822), the President, Mr. Monroe, returned the bill with a very long message, stating his objections to it. From this voluminous message, we may extract, although with some difficulty, two positions; first, that in Mr. Monroe’s opinion, Congress had no power to raise money by erecting toll-gates and collecting tolls, and that the States cannot individually grant such a power to Congress by their votes in Congress, or by any special compact with the United States; secondly, that Congress having an unlimited power to raise money by taxation general and uniform throughout the United States, its absolute discretion in the appropriation of the money so raised is restricted only by the duty of appropriating to the purposes of the common defence, and of general, not local, benefit. The first of these positions will be conceded by every one. The second admits of some doubt. Its soundness depends upon the true interpretation of the first of the enumerated powers of the Federal Constitution, that which contains the grant of the taxing power.[[10]] This is not the place to enter upon the discussion of controverted questions of constitutional interpretation. But all students of the Federal Constitution are aware that the grammatical construction of the clause to which Mr. Monroe referred, admits of, and has been claimed to admit of, two interpretations. Read by itself, and without reference to the other enumerated powers, this clause has been supposed by some persons to grant an unlimited power to tax for any purpose that in the judgment of Congress will promote the general welfare of the United States, provided only that the taxation is uniform. On the other hand, it has been contended that the clause is not a broad, independent, and specific power to tax for any object that will promote the general welfare of the United States, but that it is limited to the promotion of the general welfare through the exercise of some one or more of the other enumerated powers of the Constitution, each of which must receive its own scope from a just interpretation before the people of the United States can be taxed for the means of exercising that power. Viewed in the latter sense, the clause contains a grant of the power of taxation, general and universal in its nature, but limited as to its objects by the objects of each of the other enumerated powers. Viewed in the former sense, it becomes a separate and independent power to tax for any object that will promote the general welfare, without reference to the exercise of any of the specific powers of the Constitution which form the objects for which the Federal Government was created.
Mr. Monroe’s veto message on this occasion was sustained in the House by a vote of 68 to 72, and the bill consequently failed. The vote of the House, however, is to be considered as a concurrence in Mr. Monroe’s objection that Congress cannot establish toll-gates and collect tolls, and not as an affirmance of the general views which he expressed on the taxing power. But upon Mr. Buchanan this message produced a strong effect. It was the first time that his mind had been brought sharply to the consideration of the questions in what mode “Internal Improvements,” as they were called, can be effected by the General Government, and consequently he began to perceive the dividing line between the Federal and the State powers. Although he had voted for the bill imposing tolls upon the Cumberland Road, influenced probably by the desire to diminish its injurious competition with the Pennsylvania road, he took occasion at the next session to retract the error of which he had been convinced by Mr. Monroe’s message. When a bill was introduced at the next session, making an appropriation for the preservation and repair of the Cumberland Road, he moved as an amendment that the United States retrocede the road to the three States through which it passed, on condition that they would keep it in repair and collect no more tolls than such as would be necessary for that purpose. Being now convinced that Congress could not impose the tolls, he thought the only alternative was to cede the road to the States, since it could not be supported from the Federal Treasury without producing inequality and injustice. His amendment was rejected and the bill was passed.[[11]] A precedent was thus established for the support of the road by Congress. The subject will again recur in 1829 and 1836. In Mr. Buchanan’s speech in 1829 will be found the expression of his more matured constitutional views on the whole subject of Internal Improvements.[[12]]
The 17th Congress, which commenced its session in December, 1822, and terminated in March, 1823, witnessed a protracted discussion on the doctrine of “protection,” which extended into the 18th Congress. The tariff of 1823–4 was the second measure of that kind after the war. At that period the prevalent doctrine in the New England States was Anti-protectionist. The city of Boston was represented by Mr. Benjamin Gorham, a lawyer of remarkable ability, the immediate predecessor of Mr. Webster. His speech against the new tariff was replied to by Mr. Buchanan; and if the reply is a fair indication of the speech against which it was directed, Mr. Gorham’s language must have been vehement.[[13]] Mr. Buchanan said:
“The gentleman from Massachusetts has declared this bill to be an attempt, by one portion of the Union for its own peculiar advantage, to impose ruinous taxes on another. He has represented it as an effort to compel the agriculturists of the South to pay tribute to the manufacturers of the North; he has proclaimed it to be a tyrannical measure. He has gone further, and boldly declared that the people of the South should resist such a law, and that they ought to resist it. The gentlemen from Massachusetts and Georgia (Mr. Tattnall) have proclaimed it tyranny, and tyranny which ought to be resisted. I confess I never expected to hear inflammatory speeches of this kind within these walls which ought to be sacred to union; I never expected to hear the East counselling the South to resistance, that we might thus be deterred from prosecuting a measure of policy, urged upon us by the necessities of the country. It was by a combination between the cotton-growers of the South and the manufacturers of the North, that the introduction of coarse cottons from abroad has been in effect prohibited by the high rates of duties. It is ungenerous, then, for the South and the East to sound the tocsin of alarm and resistance when we wish indirectly to benefit the agriculturists and manufacturers of the Middle and Western States by the imposition of necessary duties. If I know myself, I am a politician neither of the East nor of the West, of the North nor of the South; I, therefore, shall forever avoid any expressions, the direct tendency of which must be to create sectional jealousies, sectional divisions, and, at length, disunion—that worst and last of all political calamities. I will never consent to adopt a general restrictive system, because the agricultural class of the community would then be left at the mercy of the manufacturers. The interest of the many would thus be sacrificed to promote the wealth of the few. The farmer, in addition to the premium which he would be compelled to pay the manufacturer, would have also to sustain the expenses of the Government. If this bill proposed a system which leads to such abuses, it should not receive my support. If I could, for a single moment, believe in the language of the gentleman from Georgia—that this bill would compel the agricultural to bow down before the manufacturing interest—I should consider myself a traitor to my country in giving it any support.”