United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives online

. (page 92 of 187)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 92 of 187)
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reasoning, which has been advanced on this
occasion. Surely, it cannot be derived from
the study of our institutions, but is a worthy
offspring of the writings of foreign jurists.
With them, sovereignty means an uiJtimited
power, and, therefore, two sovereignties cannot
exist in the same place, or operate on the same
thing : and follow their train of argument from
their definition, and their conclusion is cer-
tainly true. _ But, as I have before said, the
people of this country live under no such sov-
ereignty, and this is fully admitted; but the
many legal fictions, the boast of the English
lawyer, but, in my opinion, the disgrace of his
code, are not so readily shaken off. In this ar-
gument, we are told there can be no concurrent
jurisdiction, and from definitions equally, per-
haps, sound, and inapplicable to the case. I
confess, the study of this part of the subject
has opened a sort of fairy world, in which it
would seem to be the first element of correct
judgment to give up the evidence of the senses.
Even the late Mr. Pinkney, whose powerful in-
tellect would not suffer the cobwebs of doctrine
to obscure the end of the law, is unable to see
into this subject without the help of fiction.

Knowing that this Government could not exist,
if its army, maU-bags, custom-houses, shipsy or
other property, necessary to the execution of
its powers, were subject to taxation in every
State they might happen to be in, he discovers
a way to save the maxim about sovereignty,
and yet maintain the law. Let him speak for
himself: "The property, and all the institu-
tions of the United States, are constructively,"
yes, constructively, " without the local terri-
torial jurisdiction of the individual States, in
every respect, and for every purpose, including
that of taxation." What! the forts, arsenals,
public dockyards, arms, .and other property of
this Government, while within the States, have
no protection from the grasp of such States,
except by construction, and that construction
in the face of common sense ? Now can any
thing be more absurd than this? And how
could such an absurdity maintain its ground in
so powerful a mind? Because the States of
this Union are declared sovereign? and no
thousand facts can do away the notions infused
into the mind by this magic word. Give me
matter of fact, not fiction. If we have no Gov-
ernment, let the people know it at once, and
provide one. But how stands the fact here ?
Is this Government really alien to the States ?
Or, is it equally at home in every State or ter-
ritory in this Union, claiming an exemption
from taxation on its means of carrying on its
operations through that paramount sovereignty,
derived from the people themselves? Why re-
sort to fiction ? Are we afraid that the people
should know the fact that we attempt to blind
them with fiction ? True, this district is a res-
idence for the functionaries of this Govern-
ment, and the seat of its legislation. But the
people know that no part of its power is de-
rived from the ten miles square. Every mem-
ber of both branches of Congress are citizens of
the States, and subject to their laws. Every
President and every Head of Department, have,
so far as I know, been likewise citizens of some
of the States. They are taken from among the
people, to enact and execute laws operating to
the whole extent of our territory, and this Gov-
ernment is, in fact, equally at home in all the
States and Territories of this Union.

4. I come now to consider what seems most
insisted on, and is, I believe, declared to admit
of neither doubt nor exception. Do the States
enjoy a paramount and exclusive jurisdiction
over the soil they cover ? So long as this Gov-
ernment exists, its enactments are nothing, un-
less of force in the States. They are worse
than nothing, if subject to be repealed, dh-ectly,
or indirectly, by the individual States. And,
how, let me ask, can this Government carry on
its indispensable operations, without exercising
sovereignty over the soil ? True, this sover-
eign*?") although paramount for its purposes, is
not exclusive, even for forts, arsen^s, &c., un-
less by the consent of the States in which they
lie, so abundantly guarded are the rights of the
States. But, for all the necessary purposes of



Jandary, 1829.]

Cumberland Road.

[H. OF E.

its institution, this Government, by the decla-
ration, of the people themselves, the imiform de-
cision of its courts, and the legislative enact-
ments of every administration, from its com-
mencement, is declared to have a paramount
jurisdiction over the whole Union. The pow-
ers of this Government are co-equal with its
duties. It must establish post roads, regulate
internal commerce, defend us against our en-
emies, have fortifications, march its armies, and
occupy so much space as these operations re-
quire. Suppose a State were to refuse her con-
sent to each and every one of these operations ;
by what right would this Government enter
her territory for either purpose, if the State
sovereignty over the soil is exclusive ?

I have used freely the term sovereignty. I
am apprised that it is at the risk of being mis-
understood or misrepresented. I disclaim aU
definitions of this term, which signify a power
unknown to the constitution. I have used it
because it is so liberally and exclusively ap-
plied to the States, by those in opposition to
my views. I grant that each Government is
equally entitled to the term, but must again re-
peat, that the people of this country acknowl-
edge no sovereignty inconsistent with that lib-
erty which they have again and again declared
to be dearer than life, and which he who sur-
renders is unworthy to live.

If I have been so fortunate as to have con-
veyed my ideas intelligibly, in what I have
said, little more wiU be necessary to point out
the opinions I entertain on this subject. I
think I have shown that the United States is a
Government of the people, and that its powers
ai"e all sovereign and paramount, though, in
many instances, not exclusive. That, if it can
make a road, it must do so as a sovereign power,
and, if so, a power to tax for the use, is a
necessary and proper incident. But this power,
although sufiicient for its objects, can be ex-
tended no farther. It can never be extended to
forbid a State from making as many roads as
it thinks proper, nor can it claim from the cit-
izen any tax except he travels the road. And
it is equally untrue, that the legislation of Con-
gress, on this subject is intended to be exclu-
sive. The sovereignty of the States over this
road remains uninterrupted for aU the purposes
of her civil and criminal jurisdiction, and Con-
gress is restricted in its legislation to those
measures which may be necessary and proper
to construct, preserve, and keep it for the pur-
posesof the nation. Nor have the individuals
on this road been invaded without a strict ob-
servance of that clause of the constitution re-
quiring compensation to be made to them for
every damage they have sustained.

Sir, it was obvious that a successful opposi-
tion to this bOl required that the force of legis-
lative precedent should be destroyed. I con-
fess this forms no conclusive argument ; but, in
spite of what has been said to decry its in-
fluence, I must still point to your statute book.
If the exercise of incidental powers, from the

establishment of the Government to this day, has
not developed proofs of the absolute necessity
of the frequent use of those powers to the ex-
istence of this Government, then I think the
argument must be yielded to our adversaries.
The framers of the constitution did not attempt
a code of laws, but a constitution. They knew
the age they lived in, and had they been re-
quired to do so, it was beyond the wisdom of man
to devise laws suited to the progressive wants
of this expanding nation. They knew that it
would be equally vain and pernicious to at-
tempt to fetter society with a code like that of
the Locrians, or the more renowned laws of
Lycurgus. No, sir: the march of knowledge,
and the spread of institutions, beneficial to
mankind, forbade it. A form of Government
they gave for our acceptance ; and, wonder-
fully comprehensive as it is, few, very few of
our laws are founded directly on the powers
granted to Congress. The whole post-oflace
code, extending to punishment of the people
for every hindrance or iujury to the mail, and
even forbidding the reasonable liberty of car-
rying letters for hire on private account, are
passed by powers incidental to the right to
" establish post offices and post roads." The
revenue laws, and the tariff among them, are
incidental to a right " to regulate commerce."
Nor is this the most remote incident to this
power which has been exercised. Buoys, bea-
cons, lighthouses, dockyards, and sea walls,
have risen under it, and a tax on all who use
this light is exacted on the same principles.

The treaty-making power appears to carry
incidents still more wonderful. The power to
make treaties has carried with it that to buy
those invaluable possessions Louisiana and
Florida, and not only to pay for them twenty
millions of the people's money, but to bind this
Union to accept of them as States, equal every
way to those who made the purchase. Where
is the authority granted to this nation to have
passed these laws ? I venture to say they are
nowhere to be found, except in the incidental
powers granted by the people in the constitu-
tion. And shall we acknowledge all these
powers — ^the right to take away the lives of
our citizens, to consume millions of our money,
to open to foreign nations the door of union
and equal sovereignty with ourselves, and yet
shrink back from the power to make a road,
which is equally an obvious incident to granted
power ?

I have said that all the powers of this Gov-
ernment must be sovereign. No State can add
to them, except in the instances pointed out in
the constitution. I, therefore, think it unneces-
sary to say much on the subject of compacts
made with the States, on the subject of this
road. If we had not the right to make this
road, before these compacts, we have never
had the right. But if we have that right, cer-
tainly an obligation to exercise it might grow
out of the compacts alluded to. This view of
the matter seems the only rational account of



H. OP K.]

Widow of John Pauldmg.

[jAHuAKr, 1829.

it. The road in question is beneficial to the
States through which it runs ; but it is inval-
uable to the States lying beyond it to the West.
To grant power to make it is a strange way of
asking a favor of such magnitude; to have
made a compact requiring its construction, was
a regular and ordinary exercise of that atten-
tion to our interest, so indispensable in all the
transactions of life.

Mr. Baknet remarked that, as a Representa-
tive of one of the States to which this road
was to be transferred, not as a gratuity, but
clogged with onerous and oppressive conditions,
it became him to investigate the title, and to
be well assured of its validity, before he could
give his assent to the transfer. In the present
dilapidated condition of the Cumberland road,
in consequence of the continued neglect of Con-
gress to make adequate appropriations for its
repair, it will require a large expenditure to
put it in a condtion to erect toU gates, which,
by turnpike law, are to be thrown open when-
ever it shall cease to be in good travelling or-
der. One hundred thousand dollars is appro-
priated by the original bill to this object. [Mr.
Buchanan stated that this amendment did not
propose to strike it out.] Thus, (said Mr. B.,)
the leading question presents itself: What au-
thority does Congress possess to delegate to the
States of Pennsylvania, Maryland, and Virginia,
a power which the gentleman from Pennsyl-
vania, and all who support his amendment,
deny she herself possesses? If the General
Government cannot erect toll-gates, can she
authorize the erection of them by the States ?
And conceding, as I do, her right to preserve,
by the exercise of her own sovereignty, that
which she has created, yet she cannot, by any
forced construction of the compact with Ohio,
transfer . this road, or divest herself of its pro-
prietorship, by any legislative enactment.

While the Western world was almost a des-
ert, you contracted, for a valuable considera-
tion, to connect it with the Atlantic border,
by making, regulating, and constructing a high-
way, that should create an identity of interests,
by facilitating intercourse ; and the obligation
to preserve it, for the fuU attainment of all the
objects designed by its construction, is binding
on all succeeding generations. If you can now
transfer it to a State or States, you could, with
equal propriety, have destroyed it within a
month after you had complied with the letter
of your compact, by its construction. So long
as this Union shaU endure — and may Heaven
grant it perpetuity ! — so long are these United
States bound, by the spirit of their compact,
by every principle of morality and good faith,
by self-interest, which has its influence in the
councils of the nation as weU as in the breasts
of individuals, to preserve this object of general
interest — the common property of the Eepublic
— which they cannot divest themselves of, and
which they ought not, if they could. Wherein
consists the difference between exacting light
money and toUs on a highway ? Will it be con-

tended that, because a ship is borne on the
wide expanse of the Atlantic Ocean, without ,
the limits of any individual State, the General
Government has exclusive jurisdiction ?

It must be recollected that four-fifths of all
our lighthouses are erected in our bays, and
sounds, and riyera, and within the limits of the
States ; consequently the cases are precisely
pai-allel, and the former right having always
been fully conceded, with what propriety can
the latter be denied ? The Government being
bound, in good faith, to keep up the road, it is
but reasonable that they who enjoy the benefit
of it, should contribute an indemnity adequate
to the injury sustained by the travel over it.
He who passes to-day contemplates to return
to-morrow ; and it is his interest that it should
be always kept in such a state of repair as to
create the least possible delay, and enable him
to carry the heaviest burdens ; and as it must be
sustained by a tax, the principles of equity and
justice demand that the remotest sections of
the Union should not be required to contribute
to an improvement which" affords to them no
advantage ; but that those who enjoy the ben-
efit should bear the burden. Pennsylvania and
Maryland by their respective laws, have invited
you to erect toU-gates thereon. Through Vir-
ginia it passes but a few miles ; and, were the
assent of that State deemed necessary, she has
displayed too much magnanimity in granting
corporate privileges to citizens of other States
to the right of her soU, to refuse it to these
United States.

Mr. B. attached additional importance to the
decision of the committee on this amendment,
as to its efiect on other improvements contem-
plated to be made out of the public funds. If
it should succeed, it is not difficult to foretell
the fate of the great national road from Wash-
ington to New Orleans, in the South, and to
Buffalo, in the North. Congress wiU cease to
entertain similar propositions of a national
character, whenever it shall be solemnly de-
cided that the roads, as soon as constructed,
are to be ceded to the'respective States through
whose limits they pass, and thus the course of
the republic be arrested in her march to the
high destinies which await her. The bill, as
reported, proposes to impart vitality to the
road — a living principle which carries with it
the means of self-preservation. It is a meta-
physical refinement to suppose that the exercise
of a powerj by the General Government, with-
in the limits,_ and by the assent, of a State,
which, while it benefits her, does no injury to
her sister States, can, by any fair constmction,
be deemed a violation of constitutional right.

Tuesday, January 27.

WiAova of John Paulding.

Mr. Waed submitted the following resolu-

Resolved^ That the report ou the memorial of



Jaitoary, 1829.]

Widow of John Paulding.

[H. OP E.

certain citizens of the county of West Chester, in
the State of New York, heretofore presented to this
House, praying for a pension to the widow of John
Paulding, deceased, one of the captors of Andre, be
re-committed to the Committee on Military Pen-

In support of his resolution, Mr. Waed said
that, having made the motion from a sense of
duty, he was constrained, by the same princi-
ple, to make a few explanatory remarks upon
the circumstances of the case. Sir, (said Mr.
W.,) the petition that I am now desirous should
he recommitted to the Committee on Revolu-
tionary Pensions, I had the honor to submit to
this House at its last session, which was then
referred to that committee, and upon which
the committee made an unfavorable report. It
was my intention, sir, to have proposed an
amendment, in favor of this widow, to the bill
reported for the relief of certain surviving offi-
cers and soldiers of the Eevolution, and which
yet remains to be acted upon : but I felt it to
be my duty, in the first place, to consult with
the honorable gentleman at the head of that
committee, upon the subject, and he advised
me to pursue the course I have now adopted.
It wiU be seen, sir, that this resolution does
not instruct the committee to bring in a bill ;
nevertheless it is my wish that gentlemen who
are in favor of granting the prayer of the pe-
titioner, should vote in favor of it, and that
those who are opposed to it, will vote against
it ; because we have now but thirty days left
in this session upon which we can transact busi-
ness ; and if the House was opposed to this
application, I am not desirous of troubling the
committee again with this matter. I would
observe that the petition sets forth that John
Paulding, who was one of the captors of Major
Andre,- died several years since, leaving a
widow in indigent circumstances, with twenty
children, five of whom are minors, and that
they pray that the pension which was granted
to him during his life, may be given to his

It is well known to every gentleman of this
House that, in the Autumn of 1780, when our
military affairs in every quarter were in a
worse condition than they had ever been in
since the beginning of the war of the Eevolu-
tion — ^if we except the -latter part of the year
1776 — and when dismay and almost despair
had paralyzed the energies of our country ; and
at a time too, when Washington was absent
from the camp on official duties, and when our
Army was dwindled to a few thousand efficient
men, that Arnold, in brooding over his imag-
inary wrongs and neglects, from a spirit of re-
sentment and avarice, committed an act of trea-
son — not a simple act of treason, by deserting
his own standard and flying from his own post,
but an act of treason pregnant with the most
awful consequences, such as involved the lives
of his whole army and the fate of his country
The success of his plan would have been a

death blow to the hopes of America. Arnold
had been, for a long time, laying his plans and
searing his conscience. The British, after
many hints and suggestions from him, under-
stood their man, and Major Andre was sent to
West Point to negotiate the business of the sur-
render of this stronghold. The work, as far as
compact could make it, was accomplished.
The British spy was returning to his head-
quarters, flushed with the success of his diplo-
macy, when he was taken by John Paulding
and his associates, three plain honest yeomen
of the county of West Chester, citizen soldiers,
without wealth or office. The prisoner offered
them bribes of great magnitude to release him,
and named himself as a hostage until those
stipulations were complied with, and his ran-
som was forthcoming. They did not listen to
him, although they would not doubt his word,
nor the ability of his general to pay the ran-
som, but rejected his offers, and marched
him, forthwith, to the nearest post of the
American army, and gave him up to the coni-
manding officer, and felt happy in the dis-
charge of their duty. The country was as-
tonished and confounded at this act of treason,
and officers and soldiers started forth to avenge
it; but, while words of indignation were on
every tongue at the very name of Arnold, those
of commendation and gratitude to these captors
were commingled with them.

Congress felt satisfied with the patriotism ol
these men, and expressed a sense of gratitude
to them by voting to send medals to the Com-
mander-in-Chief, to be presented to them ; and
with the scanty means then in the power of the
nation voted also to pension them for life. A
dollar then, as our country was situated, wa«
worth a hundred now : for at the time when
this was done the Treasury was nearly bank-
rupt, and soldiers half naked and half starved
were paid in depreciated paper. Yet, such was
then thought to be the magnitude of the ser-
vices of Paulding and his associates, that there
was no question about the course to be pursued
in rewarding such inflexible honesty. The
army, who knew what was honorable in cit-
izen soldiers, hailed with delight this act of jus-
tice in Congress, and not a murmur was heard
among the people, who were then ground to
the earth by taxes and requisitions to support
the war. The soldiers did not think the coun-
try bountiful, or hardly just, to those men, for
such important services. Besides these honors,
an ample page was given to this incident in the
annals of our Revolutionary conflict ; and the
biographers and historians gave the names of
John Paulding, Isaac Van Wart, and David
Williams, to future ages, as men in the common
walks of life, who were above the influence of
a bribe — ^men who maintained Spartan integrity
in the midst of corruption, espionage, treachery,
and treason. The story was told on both sides
of the Atlantic in nearly the same words : and
the enemy, while he deplored the loss he had
sustained, never denied these men the virtue of



H. OP K.]

Widovi of Jo7m Paulding.

[Jabcaky, 1829.

stern honesty. Two of these men, Paulding,
and Van Wart, resided in the county I have the
honor to represent, and I can speak of*them
from personal knowledge. They supported
through life an unsuUied reputation. Their
fame was never tarnished ; they were respect-
ed by the whole living neighborhood, and hon-
ored with civic honors when dead ; and the
corporation of the city of New York reared a
monument to the memory of Paulding, in grat-
itude for his services.

And now, sir, what is it that the petitioners
ask ? For it must be remembered that it is not
the petition of the widow and orphans of John
Paulding for a large sum of money, to give
them affluence and ease ; no — ^but it is the pe-
tition of the inhabitants of West Chester county,
their neighbors, who are acquainted with their
indigent circumstances, and also with the mer-
its of the deceased, soliciting only a humble pit-
tance to save a sinking widow and a bereaved
family from penury and want. It may be said
that hundreds of meritorious ofScers and sol-
diers, who faithfully discharged their duty,
have died without a just compensation for their
Services and sufferings. This is a painful truth,
which I deplore, not deny ; but I think it no
argument against the prayer of this petition.
Shall we be hardened against humane and gen-
erous acts to one, because justice cannot be
shown to all ? ShaU we deny justice to the
living, because we neglected to do it to some
who are now beyond the reach of it ? This
argument was strongly urged, last session, on
the bill for making some compensation to the
surviving oflBcers of the Eevolution who come
under certain clauses, yet, thank God, it had
but little effect on the good sense of this House.
A great portion of the original number of those
entitled to this compensation were in their
graves; they had fallen like the autumnal
leaves, and sunk into the bosom of their mother
earth, unnoticed and unknown. Several of
them died while we were lingering on with

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 92 of 187)