CHAPTER VII.
DEATH OF MR. LOWNDES
I had but a slight acquaintance with Mr. Lowndes. He resigned his place on account of declining health soon after I came into Congress; but all that I saw of him confirmed the impression of the exalted character which the public voice had ascribed to him. Virtue, modesty, benevolence, patriotism were the qualities of his heart; a sound judgment, a mild persuasive elocution were the attributes of his mind; his manners gentle, natural, cordial, and inexpressibly engaging. He was one of the galaxy, as it was well called, of the brilliant young men which South Carolina sent to the House of Representatives at the beginning of the war of 1812 – Calhoun, Cheves, Lowndes; – and was soon the brightest star in that constellation. He was one of those members, rare in all assemblies, who, when he spoke, had a cluster around him, not of friends, but of the House – members quitting their distant seats, and gathering up close about him, and showing by their attention, that each one would feel it a personal loss to have missed a word that he said. It was the attention of affectionate confidence. He imparted to others the harmony of his own feelings, and was the moderator as well as the leader of the House and was followed by its sentiment in all cases in which inexorable party feeling, or some powerful interest, did not rule the action of the members; and even then he was courteously and deferentially treated. It was so the only time I ever heard him speak – session of 1820-21 – and on the inflammable subject of the admission of the State of Missouri – a question on which the inflamed passions left no room for the influence of reason and judgment, and in which the members voted by a geographical line. Mr. Lowndes was of the democratic school, and strongly indicated for an early elevation to the presidency – indicated by the public will and judgment, and not by any machinery or individual or party management – from the approach of which he shrunk, as from the touch of contamination. He was nominated by the legislature of his native State for the election of 1824; but died before the event came round. It was he who expressed that sentiment, so just and beautiful in itself, and so becoming in him because in him it was true, "That the presidency was an office neither to be sought, nor declined." He died at the age of forty-two; and his death at that early age, and in the impending circumstances of the country, was felt by those who knew him as a public and national calamity. I do not write biographies, but note the death and character of some eminent deceased contemporaries, whose fame belongs to the country, and goes to make up its own title to the respect of the world.
CHAPTER VIII.
DEATH OF WILLIAM PINKNEY
He died at Washington during the session of the Congress of which he was a member, and of the Supreme Court of which he was a practitioner. He fell like the warrior, in the plenitude of his strength, and on the field of his fame – under the double labors of the Supreme Court and of the Senate, and under the immense concentration of thought which he gave to the preparation of his speeches. He was considered in his day the first of American orators, but will hardly keep that place with posterity, because he spoke more to the hearer than to the reader – to the present than to the absent – and avoided the careful publication of his own speeches. He labored them hard, but it was for the effect of their delivery, and the triumph of present victory. He loved the admiration of the crowded gallery – the trumpet-tongued fame which went forth from the forum – the victory which crowned the effort; but avoided the publication of what was received with so much applause, giving as a reason that the published speech would not sustain the renown of the delivered one. His forte as a speaker lay in his judgment, his logic, his power of argument; but, like many other men of acknowledged pre-eminence in some great gift of nature, and who are still ambitious of some inferior gift, he courted his imagination too much, and laid too much stress upon action and delivery – so potent upon the small circle of actual hearers, but so lost upon the national audience which the press now gives to a great speaker. In other respects Mr. Pinkney was truly a great orator, rich in his material, strong in his argument – clear, natural and regular in the exposition of his subject, comprehensive in his views, and chaste in his diction. His speeches, both senatorial and forensic, were fully studied and laboriously prepared – all the argumentative parts carefully digested under appropriate heads, and the showy passages often fully written out and committed to memory. He would not speak at all except upon preparation; and at sexagenarian age – that at which I knew him – was a model of study and of labor to all young men. His last speech in the Senate was in reply to Mr. Rufus King, on the Missouri question, and was the master effort of his life. The subject, the place, the audience, the antagonist, were all such as to excite him to the utmost exertion. The subject was a national controversy convulsing the Union and menacing it with dissolution; the place was the American Senate; the audience was Europe and America; the antagonist was Princeps Senatus, illustrious for thirty years of diplomatic and senatorial service, and for great dignity of life and character. He had ample time for preparation, and availed himself of it. Mr. King had spoken the session before, and published the "Substance" of his speeches (for there were two of them), after the adjournment of Congress. They were the signal guns for the Missouri controversy. It was to these published speeches that Mr. Pinkney replied, and with the interval between two sessions to prepare. It was a dazzling and overpowering reply, with the prestige of having the union and the harmony of the States for its object, and crowded with rich material. The most brilliant part of it was a highly-wrought and splendid amplification (with illustrations from Greek and Roman history), of that passage in Mr. Burke's speech upon "Conciliation with the Colonies," in which, and in looking to the elements of American resistance to British power, he looks to the spirit of the slaveholding colonies as a main ingredient, and attributes to the masters of slaves, who are not themselves slaves, the highest love of liberty and the most difficult task of subjection. It was the most gorgeous speech ever delivered in the Senate, and the most applauded; but it was only a magnificent exhibition, as Mr. Pinkney knew, and could not sustain in the reading the plaudits it received in delivery; and therefore he avoided its publication. He gave but little attention to the current business of the Senate, only appearing in his place when the "Salaminian galley was to be launched," or some special occasion called him – giving his time and labor to the bar, where his pride and glory was. He had previously served in the House of Representatives, and his first speech there was attended by an incident illustrative of Mr. Randolph's talent for delicate intimation, and his punctilious sense of parliamentary etiquette. Mr. Pinkney came into the House with a national reputation, in the fulness of his fame, and exciting a great expectation – which he was obliged to fulfil. He spoke on the treaty-making power – a question of diplomatic and constitutional law; and he having been minister to half the courts of Europe, attorney general of the United States, and a jurist by profession, could only speak upon it in one way – as a great master of the subject; and, consequently, appeared as if instructing the House. Mr. Randolph – a veteran of twenty years' parliamentary service – thought a new member should serve a little apprenticeship before he became an instructor, and wished to signify that to Mr. Pinkney. He had a gift, such as man never had, at a delicate intimation where he desired to give a hint, without offence; and he displayed it on this occasion. He replied to Mr. Pinkney, referring to him by the parliamentary designation of "the member from Maryland;" and then pausing, as if not certain, added, "I believe he is from Maryland." This implied doubt as to where he came from, and consequently as to who he was, amused Mr. Pinkney, who understood it perfectly, and taking it right, went over to Mr. Randolph's seat, introduced himself, and assured him that he was "from Maryland." They became close friends for ever after; and it was Mr. Randolph who first made known his death in the House of Representatives, interrupting for that purpose an angry debate, then raging, with a beautiful and apt quotation from the quarrel of Adam and Eve at their expulsion from paradise. The published debates give this account of it: "Mr. Randolph rose to announce to the House an event which he hoped would put an end, at least for this day, to all further jar or collision, here or elsewhere, among the members of this body. Yes, for this one day, at least, let us say, as our first mother said to our first father —
'While yet we live, scarce one short hour perhaps,
Between us two let there be peace.'
"I rise to announce to the House the not unlooked for death of a man who filled the first place in the public estimation, in the first profession in that estimation, in this or in any other country. We have been talking of General Jackson, and a greater than him is, not here, but gone for ever. I allude, sir, to the boast of Maryland, and the pride of the United States – the pride of all of us, but more particularly the pride and ornament of the profession of which you, Mr. Speaker (Mr. Philip P. Barbour), are a member, and an eminent one."
Mr. Pinkney was kind and affable in his temper, free from every taint of envy or jealousy, conscious of his powers, and relying upon them alone for success. He was a model, as I have already said, and it will bear repetition, to all young men in his habits of study and application, and at more than sixty years of age was still a severe student. In politics he classed democratically, and was one of the few of our eminent public men who never seemed to think of the presidency. Oratory was his glory, the law his profession, the bar his theatre; and his service in Congress was only a brief episode, dazzling each House, for he was a momentary member of each, with a single and splendid speech.
CHAPTER IX.
ABOLITION OF THE INDIAN FACTORY SYSTEM
The experience of the Indian factory system, is an illustration of the unfitness of the federal government to carry on any system of trade, the liability of the benevolent designs of the government to be abused, and the difficulty of detecting and redressing abuses in the management of our Indian affairs. This system originated in the year 1796, under the recommendation of President Washington, and was intended to counteract the influence of the British traders, then allowed to trade with the Indians of the United States within our limits; also to protect the Indians from impositions from our own traders, and for that purpose to sell them goods at cost and carriage, and receive their furs and peltries at fair and liberal prices; and which being sold on account of the United States, would defray the expenses of the establishment, and preserve the capital undiminished – to be returned to the treasury at the end of the experiment. The goods were purchased at the expense of the United States – the superintendent and factors were paid out of the treasury, and the whole system was to be one of favor and benevolence to the Indians, guarded by the usual amount of bonds and oaths prescribed by custom in such cases. Being an experiment, it was first established by a temporary act, limited to two years – the usual way in which equivocal measures get a foothold in legislation. It was soon suspected that this system did not work as disinterestedly as had been expected – that it was of no benefit to the Indians – no counteraction to British traders – an injury to our own fur trade – and a loss to the United States; and many attempts were made to get rid of it, but in vain. It was kept up by continued temporary renewals for a quarter of a century – from 1796 to 1822 – the name of Washington being always invoked to continue abuses which he would have been the first to repress and punish. As a citizen of a frontier State, I had seen the working of the system – seen its inside working, and knew its operation to be entirely contrary to the benevolent designs of its projectors. I communicated all this, soon after my admission to a seat in the Senate, to Mr. Calhoun, the Secretary at War, to whose department the supervision of this branch of service belonged, and proposed to him the abolition of the system; but he had too good an opinion of the superintendent (then Mr. Thomas L. McKinney), to believe that any thing was wrong in the business, and refused his countenance to my proposition. Confident that I was right, I determined to bring the question before the Senate – did so – brought in a bill to abolish the factories, and throw open the fur trade to individual enterprise, and supported the bill with all the facts and reasons of which I was master. The bill was carried through both Houses, and became a law; but not without the strenuous opposition which the attack of every abuse for ever encounters – not that any member favored the abuse, but that those interested in it were vigilant and active, visiting the members who would permit such visits, furnishing them with adverse statements, lauding the operation of the system, and constantly lugging in the name of Washington as its author. When the system was closed up, and the inside of it seen, and the balance struck, it was found how true all the representations were which had been made against it. The Indians had been imposed upon in the quality and prices of the goods sold them; a general trade had been carried on with the whites as well as with the Indians; large per centums had been charged upon every thing sold; and the total capital of three hundred thousand dollars was lost and gone. It was a loss which, at that time (1822), was considered large, but now (1850) would be considered small; but its history still has its uses, in showing how differently from its theory a well intended act may operate – how long the Indians and the government may be cheated without knowing it – and how difficult it is to get a bad law discontinued (where there is an interest in keeping it up), even though first adopted as a temporary measure, and as a mere experiment. It cost me a strenuous exertion – much labor in collecting facts, and much speaking in laying them before the Senate – to get this two years' law discontinued, after twenty-five years of injurious operation and costly experience. Of all the branches of our service, that of the Indian affairs is most liable to abuse, and its abuses the most difficult of detection.
CHAPTER X.
INTERNAL IMPROVEMENT
The Presidential election of 1824 was approaching, the candidates in the field, their respective friends active and busy, and popular topics for the canvass in earnest requisition. The New-York canal had just been completed, and had brought great popularity to its principal advocate (De Witt Clinton), and excited a great appetite in public men for that kind of fame. Roads and canals – meaning common turnpike, for the steam car had not then been invented, nor McAdam impressed his name on the new class of roads which afterwards wore it – were all the vogue; and the candidates for the Presidency spread their sails upon the ocean of internal improvements. Congress was full of projects for different objects of improvement, and the friends of each candidate exerted themselves in rivalry of each other, under the supposition that their opinions would stand for those of their principals. Mr. Adams, Mr. Clay, and Mr. Calhoun, were the avowed advocates of the measure, going thoroughly for a general national system of internal improvement: Mr. Crawford and General Jackson, under limitations and qualifications. The Cumberland road, and the Chesapeake and Ohio canal, were the two prominent objects discussed; but the design extended to a general system, and an act was finally passed, intended to be annual and permanent, to appropriate $30,000 to make surveys of national routes. Mr. Monroe signed this bill as being merely for the collection of information, but the subject drew from him the most elaborate and thoroughly considered opinion upon the general question which has ever been delivered by any of our statesmen. It was drawn out by the passage of an act to provide for the preservation and repair of the Cumberland road, and was returned by him to the House in which it originated, with his objections, accompanied by a state paper, in exposition of his opinions upon the whole subject; for the whole subject was properly before him. The act which he had to consider, though modestly entitled for the "preservation" and "repair" of the Cumberland road, yet, in its mode of accomplishing that purpose, assumed the whole of the powers which were necessary to the execution of a general system. It passed with singular unanimity through both Houses, in the Senate, only seven votes against it, of which I afterwards felt proud to have been one. He denied the power; but before examining the arguments for and against it, very properly laid down the amount and variety of jurisdiction and authority which it would require the federal government to exercise within the States, in order to execute a system, and that in each and every part – in every mile of each and every canal road – it should undertake to construct. He began with acquiring the right of way, and pursued it to its results in the construction and preservation of the work, involving jurisdiction, ownership, penal laws, and administration. Commissioners, he said, must first be appointed to trace a route, and to acquire a right to the ground over which the road or canal was to pass, with a sufficient breadth for each. The ground could only be acquired by voluntary grants from individuals, or by purchases, or by condemnation of the property, and fixing its value through a jury of the vicinage, if they refused to give or sell, or demanded an exorbitant price. After all this was done, then came the repairs, the care of which was to be of perpetual duration, and of a kind to provide against criminal and wilful injuries, as well as against the damages of accident, and deterioration from time and use. There are persons in every community capable of committing voluntary injuries, of pulling down walls that are made to sustain the road; of breaking the bridges over water-courses, and breaking the road itself. Some living near it might be disappointed that it did not pass through their lands, and commit these acts of violence and waste from revenge. To prevent these crimes Congress must have a power to pass laws to punish the offenders, wherever they may be found. Jurisdiction over the road would not be sufficient, though it were exclusive. There must be power to follow the offenders wherever they might go. It would seldom happen that the parties would be detected in the act. They would generally commit it in the night, and fly far off before the sun appeared. Right of pursuit must attach, or the power of punishing become nugatory. Tribunals, State or federal, must be invested with power to execute the law. Wilful injuries would require all this assumption of power, and machinery of administration, to punish and prevent them. Repair of natural deteriorations would require the application of a different remedy. Toll gates, and persons to collect the tolls, were the usual resort for repairing this class of injuries, and keeping the road in order. Congress must have power to make such an establishment, and to enact a code of regulations for it, with fines and penalties, and agents to execute it. To all these exercises of authority the question of the constitutionality of the law may be raised by the prosecuted party. But opposition might not stop with individuals. States might contest the right of the federal government thus to possess and to manage all the great roads and canals within their limits; and then a collision would be brought on between two governments, each claiming to be sovereign and independent in its actions over the subject in dispute.
Thus did Mr. Monroe state the question in its practical bearings, traced to their legitimate results, and the various assumptions of power, and difficulties with States or individuals which they involved; and the bare statement which he made – the bare presentation of the practical working of the system, constituted a complete argument against it, as an invasion of State rights, and therefore unconstitutional, and, he might have added, as complex and unmanageable by the federal government, and therefore inexpedient. But, after stating the question, he examined it under every head of constitutional derivation under which its advocates claimed the power, and found it to be granted by no one of them, and virtually prohibited by some of them. These were, first, the right to establish post-offices and post-roads; second, to declare war; third, to regulate commerce among the States; fourth, the power to pay the debts and provide for the common defence and general welfare of the United States; fifth, to make all laws necessary and proper to carry into effect the granted (enumerated) powers; sixth, from the power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States. Upon this long enumeration of these claimed sources of power, Mr. Monroe well remarked that their very multiplicity was an argument against them, and that each one was repudiated by some of the advocates for each of the others: that these advocates could not agree among themselves upon any one single source of the power; and that it was sought for from place to place, with an assiduity which proclaimed its non-existence any where. Still he examined each head of derivation in its order, and effectually disposed of each in its turn. 1. The post-office and post-road grant. The word "establish" was the ruling term: roads and offices were the subjects on which it was to act. And how? Ask any number of enlightened citizens, who had no connection with public affairs, and whose minds were unprejudiced, what was the meaning of the word "establish," and the extent of the grant it controls, and there would not be a difference of opinion among them. They would answer that it was a power given to Congress to legalize existing roads as post routes, and existing places as post-offices – to fix on the towns, court-houses, and other places throughout the Union, at which there should be post-offices; the routes by which the mails should be carried; to fix the postages to be paid; and to protect the post-offices and mails from robbery, by punishing those who commit the offence. The idea of a right to lay off roads to take the soil from the proprietor against his will; to establish turnpikes and tolls; to establish a criminal code for the punishment of injuries to the road; to do what the protection and repair of a road requires: these are things which would never enter into his head. The use of the existing road would be all that would be thought of; the jurisdiction and soil remaining in the State, or in those authorized by its legislature to change the road at pleasure.
2. The war power. Mr. Monroe shows the object of this grant of power to the federal government – the terms of the grant itself – its incidents as enumerated in the constitution – the exclusion of constructive incidents – and the pervading interference with the soil and jurisdiction of the States which the assumption of the internal improvement power by Congress would carry along with it. He recites the grant of the power to make war, as given to Congress, and prohibited to the States, and enumerates the incidents granted along with it, and necessary to carrying on war: which are, to raise money by taxes, duties, excises, and by loans; to raise and support armies and a navy; to provide for calling out, arming, disciplining, and governing the militia, when in the service of the United States; establishing fortifications, and to exercise exclusive jurisdiction over the places granted by the State legislatures for the sites of forts, magazines, arsenals, dock-yards, and other needful buildings. And having shown this enumeration of incidents, he very naturally concludes that it is an exclusion of constructive incidents, and especially of one so great in itself, and so much interfering with the soil and jurisdiction of the States, as the federal exercise of the road-making power would be. He exhibits the enormity of this interference by a view of the extensive field over which it would operate. The United States are exposed to invasion through the whole extent of their Atlantic coast (to which may now be added seventeen degrees of the Pacific coast) by any European power with whom we might be engaged in war: on the northern and northwestern frontier, on the side of Canada, by Great Britain, and on the southern by Spain, or any power in alliance with her. If internal improvements are to be carried on to the full extent to which they may be useful for military purposes, the power, as it exists, must apply to all the roads of the Union, there being no limitation to it. Wherever such improvements may facilitate the march of troops, the transportation of cannon, or otherwise aid the operations, or mitigate the calamities of war along the coast, or in the interior, they would be useful for military purposes, and might therefore be made. They must be coextensive with the Union. The power following as an incident to another power can be measured, as to its extent, by reference only to the obvious extent of the power to which it is incidental. It has been shown, after the most liberal construction of all the enumerated powers of the general government, that the territory within the limits of the respective States belonged to them; that the United States had no right, under the powers granted to them (with the exceptions specified), to any the smallest portion of territory within a State, all those powers operating on a different principle, and having their full effect without impairing, in the slightest degree, this territorial right in the States. By specifically granting the right, as to such small portions of territory as might be necessary for these purposes (forts, arsenals, magazines, dock-yards and other needful buildings), and, on certain conditions, minutely and well defined, it is manifest that it was not intended to grant it, as to any other portion, for any purpose, or in any manner whatever. The right of the general government must be complete, if a right at all. It must extend to every thing necessary to the enjoyment and protection of the right. It must extend to the seizure and condemnation of the property, if necessary; to the punishment of the offenders for injuries to the roads and canals; to the establishment and enforcement of tolls; to the unobstructed construction protection, and preservation of the roads. It must be a complete right, to the extent above stated, or it will be of no avail. That right does not exist.
3. The commercial power. Mr. Monroe argues that the sense in which the power to regulate commerce was understood and exercised by the States, was doubtless that in which it was transferred to the United States; and then shows that their regulation of commerce was by the imposition of duties and imposts; and that it was so regulated by them (before the adoption of the constitution), equally in respect to each other, and to foreign powers. The goods, and the vessels employed in the trade, are the only subject of regulation. It can act on none other. He then shows the evil out of which that grant of power grew, and which evil was, in fact, the predominating cause in the call for the convention which framed the federal constitution. Each State had the right to lay duties and imposts, and exercised the right on narrow, jealous, and selfish principles. Instead of acting as a nation in regard to foreign powers, the States, individually, had commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense. This contracted policy in some of the States was counteracted by others. Restraints were immediately laid on such commerce by the suffering States; and hence grew up a system of restrictions and retaliations, which destroyed the harmony of the States, and threatened the confederacy with dissolution. From this evil the new constitution relieved us; and the federal government, as successors to the States in the power to regulate commerce, immediately exercised it as they had done, by laying duties and imposts, to act upon goods and vessels: and that was the end of the power.
4. To pay the debts and provide for the common defence and general welfare of the Union. Mr. Monroe considers this "common defence" and "general welfare" clause as being no grant of power, but, in themselves, only an object and end to be attained by the exercise of the enumerated powers. They are found in that sense in the preamble to the constitution, in company with others, as inducing causes to the formation of the instrument, and as benefits to be obtained by the powers granted in it. They stand thus in the preamble: "In order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution." These are the objects to be accomplished, but not by allowing Congress to do what it pleased to accomplish them (in which case there would have been no need for investing it with specific powers), but to be accomplished by the exercise of the powers granted in the body of the instrument. Considered as a distinct and separate grant, the power to provide for the "common defence" and the "general welfare," or either of them, would give to Congress the command of the whole force, and of all the resources of the Union – absorbing in their transcendental power all other powers, and rendering all the grants and restrictions nugatory and vain. The idea of these words forming an original grant, with unlimited power, superseding every other grant, is (must be) abandoned. The government of the United States is a limited government, instituted for great national purposes, and for those only. Other interests are left to the States individually, whose duty it is to provide for them. Roads and canals fall into this class, the powers of the General Government being utterly incompetent to the exercise of the rights which their construction, and protection, and preservation require. Mr. Monroe examines the instances of roads made in territories, and through the Indian countries, and the one upon Spanish territory below the 31st degree of north latitude (with the consent of Spain), on the route from Athens in Georgia to New Orleans, before we acquired the Floridas; and shows that there was no objection to these territorial roads, being all of them, to the States, ex-territorial. He examines the case of the Cumberland road, made within the States, and upon compact, but in which the United States exercised no power, founded on any principle of "jurisdiction or right." He says of it: This road was founded on an article of compact between the United States and the State of Ohio, under which that State came into the Union, and by which the expense attending it was to be defrayed by the application of a certain portion of the money arising from the sales of the public lands within the State. And, in this instance, the United States have exercised no act of jurisdiction or sovereignty within either of the States through which the road runs, by taking the land from the proprietors by force – by passing acts for the protection of the road – or to raise a revenue from it by the establishment of turnpikes and tolls – or any other act founded on the principles of jurisdiction or right. And I can add, that the bill passed by Congress, and which received his veto, died under his veto message, and has never been revised, or attempted to be revised, since; and the road itself has been abandoned to the States.