H. OF R.] Amendment to the Constitution.-Cumberland Road votes for President and Vice President of the United States, reported, in part, the following resolution : Resolved, That the two Houses shall assemble in the Chamber of the House of Representatives, on Wednesday, the 11th day of February, 1829, at 12 o'clock; that one person be appointed teller on the part of the Senate, and two persons be appointed tellers on the part of the House, to make a list of the votes for President and Vice President of the United States, as they shall be declared; that the result shall be delivered to the President of the Senate, who shall announce to the two Houses assembled as aforesaid, the state of the vote, and the persons elected, if it shall appear that a choice hath been made agreeably to the constitution of the United States, which annunciation shall be deemed a sufficient declaration of the person or persons elected, and, together with a list of the votes, shall be entered on the journals of the two Houses. This resolution was read, and concurred in by the House. AMENDMENT TO THE CONSTITUTION. The resolution offered by Mr. SMYTH, of Virginia, in relation to an amendment of the constitution, coming up as the unfinished business of yesterday morning, Mr. CONDICT said that he had had, a short time since, the honor of presenting a memorial from a number of his constituents, respectable citizens of New Jersey, asking, or recommending, such an alteration of the constitution as should prohibit the re-election of the President, and should prolong his term of service to six years. He would now, therefore, ask leave to offer an amendment to the proposition before the House, to give it that shape. In submitting this amendment, he was induced to offer it because such a proposition had been distinctly and respectfully recommended by a portion of his constituents; and whilst the House was debating the propriety of so altering the constitution as to prohibit the re-election of the President, he desired to present for its decision, also, the propriety of prolonging his term of service. He wished to be understood, that, in offering this amendment, he should consider himself under no obligation to support, by his vote, any proposition for altering the constitution. But if the House should recommend such change of its provisions as should forbid a second election of the same man as President, he thought that the peace and tranquillity of the country would be promoted by prolonging his term of service to six years. He would farther remark, that, under existing circumstances, he was averse to any change or modification of that sacred instrument, which is the basis of all our legislation. That instrument demands our highest respect and veneration, as the result of the profound deliberation of that council of sages who framed and recommended it, as well as from the incalculable benefits and blessings which the nation has derived from it in the experience of forty years. He would not consent, by his vote, to any change or alteration of its provisions, unless the actual experience of the country should demonstrate the necessity of a change, believing, as he did, that every proposal for that purpose tended somewhat to lessen the regard and the confidence which the people entertained for it. He desired the advocates of amendment to point out what urgent necessity now called for the measure, and to show the dangers aud evils which the country had seen and felt under the constitution, as it is, and as it had been administered for forty years. We had just passed through an election for a Chief Magistrate, with considerable excitement it was true, and probably with as much excitement as we might reasonably expect ever would grow out of such an occasion. Still the country was peaceful; the will of the majority had prevailed; and, although the minority had strenuously and warmly supported the man whom they honestly believed to be the best qualified for that high trust, yet, in all measures which [FEB. 9, 1829. might be recommended by the administration coming into power, and which should be calculated to promote the welfare and happiness of the country, he trusted and hoped the present minority would give a cheerful and cordial support. Such had always been his course, and such he intended it should continue. He would belong to no faction or party, for the sake of opposing any administration which should pursue an enlightened and a liberal policy, to advance the national prosperity. But, in regard to this proposed change of our constitution, until he could see some palpable and tangible evils in the light of experience, he must be constrained, in the exercise of his best judgment, to vote against it. Mr. SERGEANT then rose, and commenced some remarks upon the principle of the resolution, which were interrupted by the expiration of the single hour of the day allotted to the discussion of propositions in the form of resolutions. MONDAY, FEBRUARY 9, 1829. The amendment to the constitution, proposed by Mr. SMYTH, of Virginia, coming up again, as the unfinished business of Saturday morning, Mr. SERGEANT renewed his remarks in opposition to the amendment, and continued them until the expiration of the hour assigned to reports and resolutions. CUMBERLAND ROAD. The House then again went into Committee of the Whole. on the state of the Union, and took up the bill for the preservation and repair of the Cumberland road. Mr. BARNARD said that, in presenting to the Committee his views of the very important subject now, and for many days, under consideration, it was not his intention to enter into any argument at much length to sustain them. My object will be [said Mr. B.], if possible, to make them understood by explanations, rather than attempt to enforce them by a course of reasoning. I beg leave, at the same time, to say, that, whether there is any thing new or important, or not, in these views, they have not been adopted by me but after the most mature and anxious deliberations. I shall never, I trust, be found willing to inflict upon this House any crude or indigested notions of mine, on any important subject whatever. One thing more I wish to say in the outset, and that is, that my views of the powers of this Government in relation to the Cumberland road, will not be found to conflict with the views of those who derive its authority from any part of the constitution other than that from which I deduce it; my principal object being to show that there are principles on which all the powers in this bill may be exercised, without resorting to those which must be called in to sustain a system of Internal Improvements, if such a system can be sustained at all. I have heard it said that the attempt to sustain a power for this Government by resorting to several distinct portions of the constitution for that purpose, afforded very tolerable evidence that the power was not given at all. I agree that an attempt to hatch up a power can give but a very weak and unsatisfactory result. But I have never been able to conceive what solid objection there can be to finding a full and perfect authority for any single act of the Government, in half a dozen distinct clauses of the constitution, any more than I can imagine how the authority of an agent, on a particular service, could be weakened by having a double command for it from the same master. The loudest and fiercest objeetions which have been urged against the exercise of the power contemplated by this bill, have all proceeded on the ground that the making of the Cumberland road, as well as the measure now proposed for its preservation, could be justified only under what has been called the war power, or the commercial power, or the post road power; and from these premises gentlemen have rea soned themselves into the belief (I shall not stop to inquire how justly) that, if the example of this bill be once set, the supremacy of authority in this Government will be irrevocably established, to the certain destruction of State sovereignty. And one or two gentlemen have seemed to look for the consummation of this state of things to the time when this Government, from making a single road of four rods wide through the corner of a State, shall come to put the whole area of that State under one broad, unbroken, and beautiful pavementnot for the convenience of the royal progresses which its functionaries may make through their dominions-not for the march of armies, such as Xerxes led-but for the carriage of a letter-bag, by a post-boy, on horseback; or, at most, for the passage of a mail coach, drawn by four smart bays, and whipped up by a postillion, who is paid for his services at the rate of fifteen dollars for the month. But besides the extravagancies, not to say absurdities, into which a smart logician may easily run, on so vast a subject, there really are views of this subject which may be, and have been, presented, calculated to engender serious doubt. The subject of Internal Improvements, under this Government, is by no means free from difficulties. For one, I do not feel disposed to encounter them unnecessarily I have, therefore, as will be seen in the sequel, chosen to rest my support of this bill on a source of power different from either of those which I have enumerated. And if I succeed half as well in convincing others as I have in satisfying myself, it may be that the scruples of some at least, who have not yet made up their minds to sustain a power in this Government for all the purposes of Internal Improvement, will be so far relieved as to enable them to vote for this bill. I regret that it has not been in my power, from circumstances which some around me know very well, to look into the debates formerly had in Congress on this subject. Had I done so, I might have found that all I propose to say had been long ago anticipated by some one much abler than myself; and that, therefore, instead of entering myself into this field of controversy, I might only have called the attention of the Committee to some one who had already valiantly and successfully borne himself through it. I am encouraged, however, by the polite attention of the Committee, to proceed, and I shall do so. I am one [H. of R. and, if it is not there, it cannot be found any where. I confess it has struck me with surprise, when I have heard gentlemen, for whose talents and sagacity I have enter tained the most profound respect, attempting to show how this Government derived, by a compact of its own making, the power to do that which the constitution itself had not authorized it to do. What would the old thirteen States of this Union have thought, when the constitution was presented to them for acceptance, had they found in it a clause to this effect: 'In addition to the powers herein specially enumerated, Congress shall have power to do in the States whatsoever it shall hereafter, by compact with the people of the territories, agree to do?" And yet this is precisely what is claimed by those who deduce authority to construct the Cumberland road from a compact between the United States and the people of Ohio. This Government cannot acquire the right to violate the constitution by entering into a solemn engagement to that effect. It is fenced round on every side by that sacred instrument; and its paramount obligation is, to take from it all its lessons of wisdom for devising plans, and of energy for executing them. It is certainly very proper for us, at all times, to look diligently after the obligations under which we may have placed ourselves, in virtue of compacts or agreements, with a faithful purpose of strict performance-always remembering, however, that the faith of this Government can never stand pledged to violate the constitution, or to do any thing beyond the scope of its enumerated or incidental powers. In 1784, the United States, under the old confederation, received from the State of Virginia, by grant and cession, a title to a vast territory of land, lying northwestward of the river Ohio. The terms and conditions upon which this cession was made and received, are not, for our present purposes, necessary to be known, farther than that it was stipulated that all the unappropriated lands should form a common fund for the benefit of the United States, and that States should thereafter be formed out of the territory ceded, having the same rights of sovereignty, freedom, and independence, as the original States, and should be admitted into the Union on an equal footing with those States. This was one of those engagements which were continued in force after the abolition of the old confederation, by an express stipulation in the new constitution. It is to be observed, however, that there was, as yet, no compact which contemplated the If the Government has the power to make an appropriation for the Cumberland road, and to provide for its pre-making of any road whatever. servation, as in this bill, I can see, I think, a strong necessity for the exercise of that power at this time. of those who think that, to neglect the exercise of a power fairly belonging to the Government, whenever a necessary occasion for its exercise is presented, because of the doubts of individual politicians or of individual States, however loudly, or even angrily expressed, is just as dangerous a violation of the constitution as the assumption of unaccorded power. sun. In 1802, Congress passed a law authorizing the people of the eastern division of the territory northwest of the river Ohio, to form a constitution and State Government, preparatory to admission into the Union as a State. In this law, it was, amongst other things, proposed to the people of the eastern division of that territory, that, if they would stipulate not to tax the lands of the United States, lying within the boundaries of the proposed State, for the space of five years, from and after the day on which the The Speaker told us, the other day, of centrifugal same might be sold, the United States would apply the force and gravitation in our political planetary system; but one-twentieth part of the nett proceeds of such lands, as he seemed only to fear that the planets might fall into the the same should be sold, to the laying out, under the auGod avert that experience should ever teach us how thority of Congress, and making, of public roads "leading much danger there is that some of these immense bodies from the navigable waters emptying into the Atlantic to will fly off from their orbits, and either wander on alone the Ohio, to the said State, and through the same." This to darkness and destruction, or, meeting each other in proposition was acceded to in convention by the people their erratic flight, produce a concussion to shake the of the territory about to be erected into the new State of whole system to its centre. This bill contains an appro- Ohio, with a modification proposed by that convention, priation for repairing and perfecting the Cumberland and accepted by Congress in the next year. That modiroad, and also a provision for its permanent preservation. fication was, that three out of the five per cent. of the In the appropriation for present repairs is involved the nett proceeds of the Government lands in Ohio should be power of the Government to make that road; the remain-paid over to the State, to be applied by the Legislature of the ing provision is thought by some to involve another and a new question of power-of a power never yet exercised by the Government. The power to construct the Cumberland road, as well as every other power which this Government can exercise, must be found in the constitution; State to the same purpose of laying out and making roads in Ohio, and no other, leaving two per cent. of that fund to be applied under the direction of Congress; to be applied, not as some gentlemen seemed to have imagined, exclusively to the country this side of the Ohio, but to be applied, as all may be satisfied, by an examination of the documents on this subject, in the discretion of Congress, as if the modification of the contract had not been adopted, to the laying out and making of a road, not only to the said State, but through the same. Let us now consider the rights and duties of the respective parties to this compact, keeping in mind, all the time, that the General Government was acting, necessarily, under the salutary restraints of the constitution. The power of Congress over the territories, as over the other property of the United States, is, by a fair construction of the constitution, limited only by the equitable rule that the power shall be so exercised as not to inflict a wanton injury upon others. Nobody doubts, except those whose wisdom consists in doubting of every thing, the power of Congress to construct roads in the territories, by money drawn from the public treasury, to improve, in any way it pleases, consistently with the rule I have just mentioned, this common property of the nation, by the application of the common resources of the nation. Nobody, for instance, will deny that Congress had power to lay out and construct a national road through the territory included in the present State of Ohio, at any time previous to its erection into a State. It had too, as I contend, power to provide for the improvement and enhance ment in value of the great national domain lying within and beyond the then contemplated State of Ohio, by entering into an agreement with the people of the territory about to be formed into a State, that a road should be made through that territory, at some time after the admission of that State into the Union. The constitution gives Congress the power to admit new States into the Union, and to this the power of imposing conditions of admission is, in my judgment, clearly and necessarily incidental; and the only restraint upon Congress, in this particular, that I am aware of, beyond its own wisdom, grows out of the ordinances of the old Congress, by which the present Government is bound, and by which the old thirteen States stipulated with the people of the northwestern territory, that the new States, carved out of that territory should have the same right of sovereignty, freedom, and independence, as the original States." I shall not now stop to show, that the making of a road by the United States, through the State of Ohio, by agreement with the people of that State, cannot impair its " rights of sovereignty, freedom, and independence." It can no more have that effect, than if the same privilege were exercised by an individual, or an ordinary corporate body, under an agreement with a State, as we may perhaps understand better before I have done with the subject. [FEB 9, 1829. have already greatly exceeded the two per cent. fund, it In the present case, let it be recollected, we are inquiring after the powers of Congress to lay out and construct the Cumberland road through the States of Maryland, Pennsylvania, and Virginia, with the consent of those States. The interest which the United States had in its The United States did, as we have seen already, agree public lands was neither forgotten nor neglected by the with the people of Ohio to carry a road through the ter-framers of the constitution. And without entering now ritory of that State. And, although it may in the compact sound very much like a promise to do Ohio a favor, and it could not perhaps have promised a greater, yet if there was any balance of interest, between these parties, in the contemplated improvements, it was on the part of the United States. Having agreed to admit new States into the Union, from the vast regions beyond the Ohio and the Alleghanies, the Government must have looked to the avenues which it proposed to open to and through those regions, as the arteries through which a healthy circulation might be kept up in the extremities of the body politic. Certain it is, the United States did agree to open such an avenue, and under such circumstances, as I contend, that it has acquired the absolute and unequivocal right of laying out and making a road through the State of Ohio; placing itself under a clear obligation to expend a specified fund on some such work as was contemplated in the compact, and acquiring thereby, as clearly, the right to expend money beyond that fund, if necessarry to complete such work and keep it in repair. The fact that the expenditures for the Cumberland road into a minute examination of that clause of the constitution which gives to Congress power over the public domain, and the other common property of the United States, venture to lay down this proposition: that Congress possesses, under that instrument, precisely that kind and extent of power and authority over and respecting the public lands, which any individual or ordinary corporation, having the absolute ownership of them, would possess. So far as the property, merely, in these lands, is concerned, the United States may be considered merely as a corporation, having the ordinary power of a proprietor to do with them as it pleases for the common benefit, only taking care, in what it may do, not to injure the property of any other corporation, or of any individual whatever. Congress may dispose of these lands; and, to bring them into market and enhance their value, it may cut them up in every direction with roads and canals It may, in my judgment, do more; it may open a communication to them through any State in the Union, with the consent of thai State. The right of a proprietor of land to prepare and use a way of access to his own property, through the land of another, by consent or purchase, can neither be denied or doubted; and this is precisely the right which I claim for the United States, as the proprietor of lands. It was quite as much for the interest of the Union as for that of Ohio, that a road should be made from the Atlantic waters to and through the country northwest of the river Ohio. This interest was not pecuniary, merely, but political. It was the interest of a nation, of a great nation, which needed only a vascular system by which the blood from the centre could be thrown into the extremities, to make it very early stand up among the nations of the earth, with the limbs and stature of a giant; with one foot on the sea, and the other securely planted beyond the Alleghanies. To make a road to the vast domain of the United States beyond the Ohio, was both the right and the duty of the Government, provided that, in doing so, it did not trespass on the rights of individuals or of States. Both the power and duty were imposed upon Congress, as I contend, by the constitution, when it confided to that body the great interest which the country had in its public lands; and the execution of this trust became imperative, whenever it was possible to do it without injury to others. That time came, in relation to the laying out and constructing of this road from Cumberland to Wheeling, from the moment that the States through which it was to pass gave their consent that it might be done. This, it is well known, was done long ago, and previous to the commencement of the work; and this, in my judgment, takes away the only pretence of wrong which the Government could ever have committed, in any quarter, by the construction of this road, east of the river Ohio. [H, OF R. viduals immediately interested has been obtained by free I have not forgotten that several gentlemen, in the course of this discussion, have contended that the road-vereign, because the United States and Great Britain, by making power is emphatically a sovereign power; and they would infer that, if the General Government exercise this power within a State, without its consent, it violates the sovereignty of the State, and that the State cannot give its consent to such an exercise of power, without yielding a portion of that sovereignty, the whole of which is necessary to preserve its equality with the other States in the Union. The first mistake in this reasoning is in the fact which is assumed, and which lies at the foundation of the whole argument. The power of making roads is by no means necessarily a sovereign power. All proprietors of soil, whether individuals, or ordinary corporations, or States, possess the power of making roads through their own lands, and, by consent, to their own, through the lands of others; and that surely without any attribute of sovereignty. In constructing the Cumberland road, in its whole extent, the Government has necessarily exercised no other than an ordinary proprietary right; and the whole argument, therefore, which gentlemen have drawn from the notion of sovereignty in road making, must be reserved for those cases of Internal Improvement in which the Government may attempt to exercise a political or sovereign power, instead of a mere proprietary right. Suppose Virginia had retained her Northwestern territory to the present time, and had negotiated with Maryland and Pennsylvania for a right of way to that territory across those States, would they have been any the less sovereign States for having consented that Virginia should construct her Cumberland road? These States would, in such case, have stipulated for some efficient share in the management and control of that road, or otherwise, so far as to have secured to their citizens the freest possible use of it. In other words, they would, in such case, have stipulated for precisely the same advantages in that road, which they now do, and always will enjoy it, without any special stipulation to that effect, but merely from their membership and representation in the Union.. Between individuals, the one grants to the other a right of way over his land. Between States, the one grants to the other a right of way through the country under its jurisdiction. And the differences between the two cases is, that, in the latter, the rights of individuals in private property are concerned, as well as the jurisdiction of the State. In other words, in the latter case the proprietor, wishing a right of way, has two parties to deal with instead of one. First, the State; and secondly, the individual citizens through whose private lands the road may pass. And if the consent of both these parties is obtained, there need be, in the exercise of the right, no act of sovereign power whatever. It seems to me that no one can deny that, if the consent of the State of Virginia to the making of the Cumber- The truth is, that the only semblance of sovereignty land road through that State has been obtained by nego-which need to have been exercised by the United States in tiation, or mutual legislation, and the consent of the indi- laying out and constructing the Cumberland road, with the consent of the States through which it passes, might have grown out of the necessity of compelling individual citizens to yield up a portion of their private property, either for the way itself, or for the materials for its construction. It is to be recollected, all the time, that the foundation on which I place the power of Congress to appropriate money from the public treasury for the Cumberland road is the ordinary right of the United States as a proprietor of lands. Wishing to lay the course of this road, for its own convenience, through three of the States, it obtains their free consent, and having done so, the execution of the power is to be enforced in the usual way. Having the power to compel the payment of taxes in the treasury, to be disbursed for this object, it would have the power also, if necessary, (and a hundred to one it never would be) of taking private property for this public use, against the will of the owner, by making a just compensation for it; the same power precisely which every State in the Union has over its citizens. True, the persons over whom it might chance to exercise this power, are the citizens of a sovereign State; but they are, also, and equally, the citizens of a sovereign United States owing obedience and allegiance to both Governments, which will be sure to go on without collision, so long as the motions of the entire system are free, as they were designed to be. [FEB 9, 1829. and making of that road is concerned, cannot offend even No But although the General Government would, as I contend, under the circumstances to which I have referred, have this power of coercion over its own cititizens, within any particular State, yet, in the present instance, the State of Virginia, which now manifests most alarm on this sub-prietorship changed from the money to the road-from the ject, (and I believe Maryland and Pennsylvania followed her example) has relieved the United States from the possible necessity of exercising any such power, by having done it herself. In the days of her patriotism she passed a law, not only yielding to Congress her free consent to make a road across her territory, but she voluntarily took it-upon herself to compel her citizens, even against their will, to yield to this Government the necessary facilities for its operations on that road, upon receiving a fair compensation for their property taken for that purpose. Nobody, I apprehend, will deny the right of Virginia to make a road through her own territory, and to compel her citizens to furnish the land and the materials for that purpose, for a fair compensation; and having the power herself to accomplish all this, she has the power to cause it to be done, and certainly, therefore, to assist the United States to do it, by affording facilities for the accomplishment of the work. The conclusion to which I arrive, from the general course of reasoning which I have adopted, is, that the power to make appropriations for the Cumberland road in any part of it, does not necessarily involve the general question of power to make Internal Improvements. Whenever that question shall be presented, I was going to say, I should be ready to meet it; forgetting, not regretting, that I shall not be here to do so. Suffice it, that question is not necessarily presented here; for, if my views of this subject be correct, the power to make the appropriation contained in this bill, may be made to rest upon another principle, and may be exercised by the Government as the proprietor of lands. The consent or agreement of the States through which the road passes has indeed been sought and obtained, not to confer upon Congress the power to make the public domain accessible by means of a road, but to sanction the exercise of this legitimate power where it might interfere with the rights of others. In the remarks which I have already had the honor to submit to the Committee, I have been considering the powers of this Government to make appropriations for the Cumberland road in its whole extent, and the foundation on which I prefer to rest the power. If I understood the remarks of the honorable member of Pennsylvania, who introduced the amendment to the bill, [Mr BUCHANAN] the conclusion to which I come, so far as the laying out What then is insisted on? Why, that, after having negotiated with the sovereignties immediately interested, for leave to operate within their respective jurisdictions-after having entered within those jurisdictions, with our army of engineers, contractors, and operatives-after having purchased the use of the soil of the individual owners, and expended nearly two millions of dollars in the construction of a great national work, all which is acknowledged by the mover of the proposed amendment to have been done, with good authority, by the United States-yet the United States has no power to provide, in its own way, for the preservation of the property which it has thus acquired. And why? Because, by so doing, it drops the proprietor, and puts on the sovereign. I apprehend, if the gentleman were put to it, he would find it somewhat difficult always to mark a clear line of distinction between the proprietary and the sovereign powers of this Government; and the necessity of ever putting his acuteness to the test in this way, comes to be very little, when we consider that, let us call the power what we may, proprietary or sovereign, which the Government seeks to exercise, it cannot be exerted, unless a warrant can be found for it in the constitution; but, such warrant being found for it, the Government has it, and may exercise it, call it by what name you will. I apprehend, moreover, when we come to consider what it really is which is proposed to be done, by this bill, for the permanent preservation of the Cumberland road, we shall find very little that savors essentially of sovereign power. In order to determine what the United States may do for the permanent preservation of this grent national work, we must first inquire what is the nature of the interest which the United States have in it? I have hinted at this already; and it seems to me that it can be nothing less than the ownership of the road. The fee of the land is not changed; it remains in the original owners. The jurisdiction over the soil is not disturbed; it remains, as originally, |