During the first session of his service in the House of Representatives

(that of 1821–2), powerful efforts were made to pass a bankrupt law.

There was then a greater and more general necessity for such a measure

than had ever existed since. The extravagant expansion of the Bank of

the United States in 1816, ’17 and ’18 had reduced it to the very brink

of insolvency. In order to save itself from ruin, it was compelled to

contract its loans and issues with a rapidity beyond all former example.

The consequence was, that the years 1819, ’20 and ’21 were the most

disastrous which the country had ever experienced since the adoption of

the federal Constitution. Not only merchants and speculators were then

involved in ruin; but the rage for speculation had extended to the

farmers and mechanics throughout the country, and had rendered vast

numbers of them insolvent. The cry for relief, by the passage of a

bankrupt bill, therefore, came to Congress from all classes of society,

and from almost every portion of the Union.

The best speech which he (Mr. B.) had ever made in Congress was in

opposition to that bill. The reason was, that he had derived much

assistance from conversations with Mr. Lowndes upon the subject. That

great and good statesman was then suffering under the disease which

proved fatal to him soon after. He attempted to make a speech against

the bill, but was compelled to desist by physical exhaustion before he

had fairly entered on his subject. It was his decided conviction, that

no bankrupt law, of which the English system was the model, could ever

be adopted by Congress without great injury to the country. He (Mr. B.)

had attempted to demonstrate this proposition, at that period, and he

should now again, after the lapse of nearly twenty years, make a very

few observations on the same subject.

And in the first place, it would be physically impossible for the

district courts of the United States to carry this law into execution;

and if it were even possible, it would be extremely burdensome and

oppressive to the people generally.

The bill prescribes that all applicants for its benefit shall file their

petitions in the district court of the district in which they reside.

Twenty days’ notice only is required, and that not to be served

personally on the creditors, but merely by newspaper publication. At the

time and place appointed, the creditors of the applicant may appear and

show cause why the prayer of his petition should not be granted. If

there be no appearance on the part of the creditors, or sufficient cause

be not shown to the contrary, then the court decree the applicant to be

a bankrupt; and thus ends the first stage of the proceedings, so far as

he is personally concerned.

After such applicant has been thus declared a bankrupt, and has complied

with all the provisions of the act, he may then file another petition to

be discharged from his debts, which may be granted at any time after

ninety days from the date of the decree declaring him a bankrupt.

Seventy days’ notice is to be given to his creditors to appear in court,

and oppose his discharge, if they think proper.

It thus appeared that there might be two formal hearings in each case

before the district court upon every application; and that there would

be, in many of the cases, was beyond a doubt. Besides, from the very

nature of the proceedings in bankruptcy, and from the provisions of the

bill, the interlocutory applications, and the examinations of the

bankrupt before the court, must be very numerous. At every stage of the

proceedings a large portion of the time of the court must necessarily be

devoted to the subject.

Should the district court decide that the bankrupt shall not be

discharged, he might then demand a trial by jury, or appeal from this

decision to the circuit court. This would be another prolific fountain

of business for the district and circuit courts of the United States.

Thus far the proceeding was confined to the bankrupt personally. But

before what court was his estate to be settled? By the terms of the

bill, the demands of all creditors of the bankrupt, if disputed, must be

tried in the district court; the controversies which might arise between

the creditors and the assignees of the bankrupt, and also between the

bankrupt himself and his assignees, must be settled in the district

court; and, to use the comprehensive terms of the bill, the jurisdiction

of that court was extended “to all acts, matters, and things to be done

under and in virtue of the bankruptcy, until the final distribution and

settlement of the estate of the bankrupt, and the close of the

proceedings in bankruptcy.”

There were also several criminal offences created by the bill; all of

which must be tried in the district courts of the United States.

From the nature of the federal Constitution, all the business which he

had enumerated must necessarily be transacted in the courts of the

United States. It could not be transferred to the State courts.

Now, sir, said Mr. B., this bill will prove to be a _felo de se_. It can

never be carried into effect, for want of the necessary judicial

machinery. Another midnight judiciary must be established, to aid

bankruptcy. The number of these midnight judges which were added to the

federal judiciary in February, 1801, was eighteen; and if these were

necessary at that time, three times the number would not be sufficient

at present.

He had just examined McCullough’s Commercial Dictionary, under the title

Bankruptcy. He there found that the annual number of commissions of

bankruptcy opened in England on an average of nine years, ending with

the year 1830, was a little below seventeen hundred. The average annual

number of all the commissions which issued during the same period, was

about two thousand one hundred. One-half of these seventeen hundred

cases were what are called town cases, and the other half country cases.

To transact the town business alone, consisting of eight hundred and

fifty cases annually, it had been found necessary to establish a new

court of bankruptcy, similar to the ancient courts at Westminster Hall,

consisting of one chief judge, and three puisne judges. To this court

there were attached six commissioners, two principal registrars, and

eight deputy registrars. Such was the judicial force found necessary in

England to examine and decide upon the cases of seven hundred and fifty

bankrupts in each year.

Then what provision had the present bill made to discharge half a

million of bankrupts, the number which its friends assert exist at

present in the United States? None whatever, except to cast this burden

upon the district courts of the United States, which, in the large

commercial cities, where the cases of bankruptcy must chiefly be heard,

had already as much business as they could conveniently transact. The

courts could not transact all this business, if there were half a

million of bankrupts to be discharged, within the next twenty years.

Sir, unless you establish new courts, and increase your judicial force

at least ten fold, it is vain for you to pass the present bill. Without

this, the law can never be carried into effect. The moment it goes into

operation, these unfortunate bankrupts will rush eagerly to the district

courts in such numbers as to arrest all other judicial business. This

bill provides that these courts shall be considered open every day in

the year, for the purpose of hearing bankrupt cases.

The district courts of the United States were scattered over the Union

at great distances from each other. For example, there were in the State

of New York, he believed, but two of these courts. In Pennsylvania, one

was held in Philadelphia, another in Pittsburg, and a third in

Williamsport. Pittsburg and Philadelphia were three hundred miles apart;

and parties, jurors, and witnesses must constantly be in attendance from

great distances at these two places, on the hearing of the different

bankrupts, and on the trial of all the causes which might arise out of

the settlement of their estates. By the operation of this bill, all

these causes would and must be transferred from the State to the Federal

courts. This would be an intolerable oppression to the people.

Without entering into any detail of the frauds to which this bill would

give birth, he must be permitted to advert to the effect which it would

have upon the rights of creditors in States distant from the court where

the debtor might make his application. It would speedily sponge away all

the indebtedness, now very great, of the Southwestern portion of the

Union to the Eastern cities. Our merchants in those cities, should the

bill pass, would have no difficulty in balancing their books. This would

be done for them by the bill in the easiest possible manner.

Under all other bankrupt laws which had ever existed, or ever been

proposed, either in this country or in England, or anywhere else, as he

believed, the debtor could not obtain his certificate of discharge

without the express written assent of a certain proportion of his

creditors in number and value. This rule had never been found to operate

severely in practice on honest debtors, whilst it afforded some security

to the creditors. Under the present bankrupt laws of England, the

certificate of discharge must be signed by four-fifths in number and

value of the creditors of the bankrupt; and under our old bankrupt law

of 1800, two-thirds in number and value of the creditors were required

to sign. Without this express assent, no bankrupt could receive his

certificate of discharge. But the present bill had completely reversed

this rule. Under it the debtor must be discharged, “unless a majority in

number and value of his creditors, who have proved their debts, shall

file their written dissent thereto.” Now he should put a case; and many

such would occur under the present bill. A merchant in Philadelphia had

a debtor in Mississippi, who owed him $20,000. This debtor applies to

the district court of that State for the benefit of the act. The

merchant believes he has been guilty of fraud, and determines to oppose

his discharge. He goes or sends to Mississippi for this purpose. I ask

you, sir, what chance he would have to obtain the necessary proof, in a

country where thousands were at the same time applying for the benefit

of the bankrupt law. The task would be hopeless; and consequently the

attempt would be made in very few cases. Had the law required the

express assent of two-thirds or even a majority in number and value of

the bankrupt’s creditors, the merchant would have had one security left.

The debtor must have satisfied him that he had acted honestly before he

could have obtained his assent. Now the debtor would be discharged

unless a majority expressly dissent. The ancient rule had been reversed;

and instead of an express assent being required to produce his

discharge, there must now be an express dissent to prevent it. And if

the majority did dissent, what would be the consequence? Was this

conclusive, and would the debtor still remain liable? No, sir, no. The

Philadelphia merchant would then have to enter upon a new law suit.

Notwithstanding this express dissent, the question would, under the

bill, be referred to a jury, and if they decided in the bankrupt’s

favor, he was discharged from his debts forever, even against the

dissent of all his creditors. This jury would necessarily be composed of

his own neighbors, all having a sympathetic feeling with him, and

looking upon the distant Philadelphia creditor as an unjust and an

unfeeling man. This was a natural feeling, and common to almost all men

in similar circumstances. It implied no imputations upon their honesty.

Truly this bill was a measure to relieve all debtors who might desire to

cut loose from their debts, without any adequate provision for the

security of creditors.

But all these evils were nothing when compared with the baneful effects

which the bill would have upon the morals of the people of this country.

Our people were already too much addicted to speculation, and too

anxious to become suddenly rich. As a nation, we required the rein and

the bit much more than the spur. The present bill would stimulate the

spirit of speculation almost to madness. Men would be tempted by the

hope of realizing rapid fortunes, and living in affluence the remainder

of their days, to embark in every wild undertaking, knowing that they

had everything to gain and nothing to lose. This bill proclaimed not

merely to merchants and insurers, whose business was from its nature

hazardous; but to every citizen of the United States, “you may be as

wild and extravagant in your speculations as you please—you may attempt

to seize the golden prize in any manner you choose: if you succeed you

will then possess what your heart most desires; if not, your debts shall

be blotted out in the easiest manner possible, and you may begin the

world again.” This was in effect the language of the bill. The

consequence must be that the faith of contracts would soon become an

idle word. Our former bankrupt law was wholly compulsory in its

character, and was confined to traders. The present English bankrupt law

expressly excludes farmers and graziers from its provisions. We went a

long distance in advance of both. The present bill would be in effect

wholly voluntary, and it embraced everybody under the sun, and all debts

which had been, or might be, contracted.

He would venture to predict, that when this bill should go into

operation the people of the United States would soon become astonished

and alarmed at its consequence: and it would be blotted out of existence

in less time than had elapsed between the passage and repeal of the act

of 1800.

He might be asked if he were opposed to a bankrupt law in any form. He

could answer that he was not. He would most cheerfully vote for any safe

measure of this nature which could be carried into execution by the

courts of the United States, and he did not believe that it would be

very difficult to frame such a measure. The judicial system of the

Federal Government was of such a character, that it could never execute

a bankrupt law, modelled after the English system, without producing

great fraud, delay, and injustice. If you changed this system, and

increased the number of courts and judges, so as to enable them to

transact the business under this bill, with proper deliberation and

within a reasonable time, you would go far towards producing a judicial

consolidation of the Union. It was the opinion of Mr. Lowndes, that we

should be compelled to abandon the idea of framing a bill upon the

English model, and adopt the system which prevailed in countries subject

to the civil law. For example, he (Mr. B.) would permit a debtor in

failing circumstances to make any composition he could obtain from a

majority or two-thirds in number and value of his creditors. In that

event, he would discharge him from his debts as against the remainder,

unless they could prove that he had been guilty of fraud. He would never

place any unfortunate, but honest debtor, in the power of a few

vindictive creditors against the will of the majority. Such a law would,

in a great degree, execute itself, and dispense with nearly all the

machinery of this bill. The composition between the debtor and his

creditors, and his assignment of his property for the benefit of them

all, which he should consider indispensable, might be filed in the

district court, and receive its sanction. He would not take time at

present to do more than hint at the nature of the bankrupt law, which he

thought would be applicable to this country. It would very much resemble

the _cessio bonorum_ which now prevailed in Louisiana, where the civil

and not the common law governed the proceedings of the courts.

But what great and overruling necessity existed for Congress to pass any

bankrupt law? Each State could now pass bankrupt laws, which would

relieve their citizens from the obligation of debts contracted with

other citizens of the same State subsequent to the passage of such laws.

This point had been solemnly adjudged by the Supreme Court of the United

States, in the case of Ogden _vs._ Saunders, reported in 12th Wheaton,

213; and its authority was confirmed in the case of Boyle _vs._

Zacharie, reported in 6 Peters, 635.

This discharge, however, would be confined to debts contracted between

citizens of the same State where the discharge was granted. The decision

rested on the principle, that the State law under which the discharge

would take place, had become a part of the original contract, in the

contemplation of the parties. But if a citizen of Pennsylvania had

loaned money to a citizen of New York, who should afterwards take the

benefit of a bankrupt law existing in the latter State, this would not

discharge the debt; but the Pennsylvanian might, notwithstanding,

recover the amount due from the New Yorker, in either the federal or

State courts. But, even in such a case, if the Pennsylvania creditor

should accept his dividend of the estate of the New York debtor, he

would then be bound for ever, and the debt would be discharged. [Vide

the case of Clay _vs._ Smith, 3 Peters, 411.] Foreign creditors would,

in almost every instance, accept such dividends, if they amounted to

anything considerable; and this would be an encouragement for debtors,

in failing circumstances, not to struggle on till all their property was

gone, but to surrender it while something remained for the general

creditors. Thus, then, it was clear that the States could provide for

all prospective cases, and could enact bankrupt laws which would have

the same force and effect between their own citizens as though they had

been passed by Congress. Besides, the State courts, established in every

county, could carry those laws into effect with promptitude, and without

inconvenience to the people.

A thought had struck him at the moment. Why might not Congress declare

by law that a discharge under all State bankrupt laws should be as

effectual against citizens of other States as they could be against

citizens of the same State? This would render the system complete in

regard to future debts, without any further interposition of Congress.

He would not say that we possessed the power, under the Constitution, to

pass such a law, because he had never considered the subject; but, if we

did, it would be the best mode in which we could exercise our power over

bankruptcy. Every State would then be left at liberty to adopt the

policy in relation to bankrupts required by its own peculiar

circumstances, and to execute the laws which operated chiefly upon the

domestic concerns of its own citizens according to its own discretion.

Mr. B. said, as he had referred to the speech which he had made in the

House of Representatives on this subject, nearly twenty years ago, he

felt bound to acknowledge that, upon one point, he had fallen into a

then prevailing error. Of this he had been fully convinced by the debate

in the Senate at the last session. In 1822, it was his opinion that the

constitutional power of Congress was confined to traders, or that class

of persons which were embraced by the bankrupt laws of England at the

time of the adoption of the Federal Constitution. This he now believed

was too narrow a construction. The Constitution declared that “Congress

shall have power to establish uniform laws on the subject of

bankruptcies, throughout the United States.” The subject of bankruptcies

was thus placed generally under our control; and wherever bankruptcy

existed, no matter what might have been the pursuits of the bankrupt,

whether he had been a trader or not, our power extended over him. It

also, in his opinion, embraced artificial as well as natural persons.

Was it not absurd to say, that an individual manufacturer on one side of

the street at Lowell might be subjected to the compulsory operation of a

bankrupt law; whilst two or three individual manufacturers on the other

side of the same street, who had obtained a charter of incorporation

from the legislature of Massachusetts, could thus withdraw themselves in

their corporate capacity from the power conferred upon Congress over

bankruptcies? He, therefore, entertained no doubt of the power of

Congress to pass a compulsory bankrupt law against banks. If it could

not pass such a law, a firm of individual bankers would be embraced by

our power; but if these very individuals obtained a charter of

incorporation, they might then place that power at defiance. He

entertained as little doubt of the policy of such a law as applied to

banks. The knowledge of its existence would of itself, in almost every

instance, prevent the necessity of its application. Banks, then, in

order to save themselves from destruction, would take care to conduct

their business in such a manner as always to be able to pay their

liabilities in specie. He indulged no hope of a permanently sound

convertible paper currency except what arose from the power of Congress

to subject banks to a bankrupt law. This was the only practicable method

which could be devised of securing to the people this great blessing.

Mr. B. thought it might be shown that this bill was deficient in its

details. He would now only refer to one particular. It dispensed with

the use of commissioners of bankruptcy altogether. In this respect it

was a departure from the English statute of bankruptcy, and from our own

act of 1800. Now whilst he admitted that compulsory bankruptcy would

rarely occur under this bill, unless it might be to gratify the

malignity of a severe creditor; yet he asked the chairman of the

committee (Mr. Berrien) to say what would become of the debtor’s

property between the time which would intervene between filing the

petition against him by the creditor, and the final decree of the court

declaring him a bankrupt. The debtor might require a trial by jury

before the court to ascertain the fact whether or not he had committed

an act of bankruptcy. This trial might, and probably would, often be

delayed for years, whilst it ought to proceed immediately. What was to

become of the debtor’s property in the mean time, without commissioners?

Was he to be left to squander it at pleasure? On the other hand, if the

petitioning creditor should proceed without sufficient cause, the act of

1800 gave the debtor a remedy against him. He was bound, before the

commission was sued out, to give bond, with such surety as the court

might direct, conditioned that the obligor should prove the debtor to be

a bankrupt. In case of failure, the debtor had his remedy on the bond to

the amount of the injury he might have sustained, in case the condition

of it had been violated. Surely this was no more than justice. After the

debtor had been arrested in the pursuit of his business by a charge of

bankruptcy—after his prospects in life had been blasted—after his credit

had been destroyed—and after he had been pursued for years in a course

of litigation which eventually terminated in his favor, justice required

that he should have some remedy. He asked, therefore, why these

provisions of the act of 1800 had been left out of the present bill?

It had been contended that as the Constitution had conferred upon

Congress the power to pass a bankrupt law, it was therefore their duty

to exercise this power. But power was one thing and duty another. The

language of power was that you may—of duty that you must. The

Constitution had also conferred upon Congress the power of declaring

war, of imposing taxes, and of raising and supporting armies; but would

any Senator contend that it was our duty to give life and energy to

these powers by calling them into action, unless the interest or honor

of the country demanded it at our hands? These sovereign powers were to

be exercised or not, according to the dictates of a sound discretion;

and we were under no obligation whatever to pass a bankrupt law, unless

we believed that under all the circumstances of the country, such a law

would promote the best interests of the people.

Upon the whole, he could declare that such was his sympathy for these

unfortunate debtors, that he had never given a vote in his life more

disagreeable to his feelings than the vote which he should be compelled

to give upon the present occasion. He was convinced, however, that the

bill, in its effects, would prove disastrous to the people; and,

therefore, although reluctantly, he should record his vote against its

passage.

At the session which commenced in December, 1841, a measure in which

President Tyler and his cabinet had united was recommended to Congress.

It proposed the establishment of an “Exchequer Board,” to consist of

certain Government officers and other commissioners, with branch

agencies in the different States. As it never took effect, it is only

needful to refer to Mr. Buchanan’s description of it in a speech made on

the 29th of December, from which it appears that he regarded it as only

another form of a Government bank. He professed his readiness to concur

with the President in any unobjectionable measure confined to the

collection, safe-keeping, and disbursement of the public money, “in the

hope that, after all experiments should have been tried, and reason

should have time to prevail, the people and the Government would at

length return to and re-establish the Independent Treasury.”[69] But as

the Senate continued to be occupied through the winter of 1841–2 with

the discussion of these subjects of finance, Mr. Clay kept on in his

bitter criticisms of the President’s “vetoes” of bills which had been

passed by those who had, as he claimed, bestowed on Mr. Tyler the office

that had made him the successor of General Harrison. Mr. Clay went so

far as to propose a joint resolution for an amendment of the

Constitution, so as to require but a bare majority of all the members of

each house to pass any bill into a law, notwithstanding the objections

of the President. That he really expected to bring about such a change

in the fundamental rule which had alone made the President’s negative of

any practical value, may be doubtful. He was then looking for a

nomination to the Presidency by the next national convention of the

Whigs, and this proposal to curtail the “veto” power would probably be,

under the circumstances of the times, a popular topic on which to make

his canvass against the Democratic party. It is, perhaps, to be

regretted that Mr. Webster was not in the Senate at this time; but as he

was not, it is fortunate that Mr. Buchanan was.[70] Notwithstanding the

many differences of opinion between these two statesmen, on the scope of

the legislative powers of Congress, I regard it as certain that they

would not have differed in their views of the fundamental purpose of the

Constitution in requiring two-thirds of each House to pass a bill over

the President’s objections. Great and eminent as were Mr. Webster’s

powers of understanding and enforcing the principles of the

Constitution, and commanding as was his reputation, Mr. Buchanan was an

equally conscientious and careful student of that instrument, and

equally faithful to its great purposes. His speech on the veto power, in

reply to Mr. Clay, delivered on the 2d of February, 1842, may be ranked

very high as an exposition of one of the most important parts of our

political system. There is a good deal in it of the temporary and party

controversies of that period; and there is also a great deal of sound

and comprehensive reasoning, valuable now and hereafter.

Mr. President: I am now sorry that I ever committed myself to make a

speech upon this subject. I assure you that it has become extremely

cold; and I think I never shall again pledge myself to address the

Senate at the end of a week or ten days, to be occupied in the

discussion of an intervening and different question. Cold as the subject

had become, it is now still colder, after having waited for an hour to

hear a debate on the mere reference of a memorial to the Committee on

Commerce. But although the subject may have lost its freshness to my

mind, and I may not be able to reply to the Senator from Kentucky (Mr.

Clay) with as much effect as if the discussion on the bankrupt bill had

not intervened, yet it has lost none of its intrinsic importance.

Before I commence the discussion, however, let me clearly and distinctly

state the question to be decided by the Senate.

Under the Constitution of the United States, as it now exists—

“Every bill which shall have passed the House of Representatives and the

Senate, shall, before it become a law, be presented to the President of

the United States; if he approve he shall sign it, but if not he shall

return it, with his objections, to that House in which it shall have

originated, who shall enter the objections at large on their journal and

proceed to reconsider it. _If after such reconsideration two-thirds of

that House shall agree to pass the bill, it shall be sent, together with

the objections, to the other House, by which it shall likewise be

reconsidered, and if approved by two-thirds of that House, it shall

become a law._ But, in all such cases, the votes of both Houses shall be

determined by yeas and nays, and the names of the persons voting for and

against the bill, shall be entered on the journal of each House

respectively. If any bill shall not be returned by the President within

ten days (Sundays excepted) after it shall have been presented to him,

the same shall be a law, in like manner as if he had signed it, unless

the Congress, by their adjournment, prevent its return, in which case it

shall not be a law.”

The same constitutional rule is applicable to “every order, resolution

or vote to which the concurrence of the Senate and House of

Representatives may be necessary, except on a question of adjournment.”

The joint resolution offered by the Senator, proposes to change the

existing Constitution, so as to require but a bare majority of all the

members belonging to each House to pass any bill into a law,

notwithstanding the President’s objections.

The question then is, whether the Constitution ought to be so amended as

to require but a bare majority of all the members of each House, instead

of two-thirds of each House, to overrule the President’s veto; and, in

my opinion, there never was a more important question presented to the

Senate. Is it wise, or is it republican, to make this fundamental change

in our institutions?

The great Whig party of the country have identified themselves, in the

most solemn manner, with this proposed amendment. Feeling sensibly, by

sad experience, that they had suffered since the late Presidential

election, from not having previously presented a clear exposition of

their principles “to the public eye,” they determined no longer to

suffer from this cause. Accordingly, the conscript fathers of the church

assembled in convention at the city of Washington, on the 13th September

last—at the close of the ever memorable extra session—and adopted an

address to the people of the United States. This manifesto contains a

distinct avowal of the articles of their creed; and, first and foremost

among them all, is a denunciation of the veto power. I shall refer very

briefly to this address; although to use the language of my friend, the

present Governor of Kentucky, it contains much good reading. So

exasperated were the feelings of the party then, and so deeply were they

pledged to the abolition of the veto power, that they solemnly and

formally read John Tyler out of the Whig church, because he had

exercised it against the bills to establish “a fiscal agent” and a

“fiscal corporation” of the United States. The form of excommunication

bears a resemblance to the Declaration of Independence which severed

this country forever from Great Britain. I shall give it in their own

emphatic language. They declare that John Tyler—

“By the course he has adopted in respect to the application of the veto

power to two successive bank charters, each of which there was just

reason to believe would meet his approbation; by the withdrawal of

confidence from his real friends in Congress and from the members of his

Cabinet; by the bestowal of it upon others notwithstanding their

notorious opposition to leading measures of his administration, has

voluntarily separated himself from those by whose exertions and

suffrages he was elevated to that office through which he reached his

present exalted station,” etc.

After a long preamble, they proceed to specify the duties which the Whig

party are bound to perform to the country, and at the head of these

duties, the destruction of the veto power contained in the Constitution

stands prominently conspicuous. The following is the language which they

have employed:

“First. A reduction of the executive power, by a further limitation of

the veto, so as to secure obedience to the public will, _as that shall

be expressed by the immediate Representatives of the people and the

States_, with no other control than that which is indispensable to avert

hasty or unconstitutional legislation.”

Mark me, sir, the object is not to secure obedience to the public will

as expressed by the people themselves, the source of all political

power; but as expounded by their Senators and Representatives in

Congress.

After enumerating other duties, they declare that “to the effectuation

of these objects ought the exertions of the Whigs to be hereafter

directed.” And they make a direct appeal to the people by announcing

that “those only should be chosen members of Congress who are willing

cordially to co-operate in the accomplishment of them.” Twenty thousand

copies of this manifesto were ordered to be printed and circulated among

the people of the United States.

This appeal to the people, sir, was a vain one. The avowal of their

principles destroyed them. The people did not come to the rescue. Never

was there a more disastrous defeat than theirs, at the last fall

elections, so immediately after their triumphant victory. Thank Heaven!

the people have not thus far responded to this appeal, and I trust they

may never consent to abolish the veto power. Sir, the Democratic party,

in regard to this power, in the language of the doughty barons of

England, centuries ago, are not willing that the charter of their

liberties shall be changed. We shall hold on to this veto power as one

of the most effectual safeguards of the Union, and one of the surest

means of carrying into effect the will of the people.

In my humble judgment, the wise statesman ought equally to avoid a

foolish veneration for ancient institutions on the one hand, and a

restless desire for change on the other. In this respect, the middle is

the safer course. Too great a veneration for antiquity would have kept

mankind in bondage; and the plea of despots and tyrants, in every age,

has been that the wisdom of past generations has established

institutions which the people ought not to touch with a sacrilegious

hand. Our ancestors were great innovators; and had they not been so, the

darkness and despotism which existed a thousand years ago would have

continued until the present moment. For my own part, I believe that the

human race, from generation to generation, has in the main been

advancing, and will continue to advance, in wisdom and knowledge; and

whenever experience shall demonstrate that a change, even in the Federal

Constitution, will promote the happiness and prosperity of the people, I

shall not hesitate to vote in favor of such a change. Still, there are

circumstances which surround this instrument with peculiar sanctity. It

was framed by as wise men and as pure patriots as the sun of heaven ever

shone upon. We have every reason to believe that Providence smiled upon

their labors, and predestined them to bless mankind. Immediately after

the adoption of the Constitution, order arose out of confusion; and a

settled Government, capable of performing all its duties to its

constituents with energy and effect, succeeded to the chaos and disorder

which had previously existed under the Articles of Confederation. For

more than half a century, under this Constitution, we have enjoyed a

greater degree of liberty and happiness than has ever fallen to the lot

of any other nation on earth. Under such circumstances, the Senator from

Kentucky, before he can rightfully demand our votes in favor of a

radical change of this Constitution, in one of its fundamental articles,

ought to make out a clear case. He ought not only to point out the evils

which the country has suffered from the existence of the veto power, but

ought to convince us they have been of such magnitude, that it is not

better “to bear the ills we have, than fly to others that we know not

of.” For my own part, I believe that the veto power is one of the

strongest and stateliest columns of that fair temple which our ancestors

have dedicated to liberty; and that if you remove it from this

time-honored edifice, you will essentially impair its strength and mar

its beauty. Indeed there will then be great danger that in time it may

tumble into ruins.

Sir, in regard to this veto power, as it at present exists, the

convention which framed the Constitution, although much divided on other

subjects, were unanimous. It is true that in the earlier stages of their

proceedings, it was considerably discussed, and presented in different

aspects. Some members were in favor of an absolute veto, and others were

opposed to any veto, however qualified; but they at length unanimously

adopted the happy mean, and framed the article as it now stands in the

Constitution. According to Mr. Madison’s report of the debates and

proceedings in the convention, we find that on Saturday the 21st July,

1787, “the tenth resolution giving the executive a qualified veto,

requiring two-thirds of each branch of the legislature to overrule it,

was then agreed to _nem. con._” The convention continued in session for

nearly two months after this decision; but so far as I can discover, no

member ever attempted to disturb this unanimous decision.

A principle thus settled ought never to be rashly assailed under the

excitement of disappointed feelings occasioned by the veto of two

favorite measures at the extra session, on which Senators had fixed

their hearts. There ought to have been time for passion to cool and

reason to resume her empire. I know very well that the Senator from

Kentucky had announced his opposition to the veto power so far back as

June, 1840, in his Hanover speech; but that speech may fairly be

considered as a declaration of his own individual opinion on this

subject. The great Whig party never adopted it as one of the cardinal

articles of their faith, until, smarting under disappointment, they saw

their two favorite measures of the extra session fall beneath this

power. It was then, and not till then, that the resolution, in effect to

abolish it, was adopted by them as a party, in their manifesto. The

present amendment proposes to carry this resolution into execution.

I should rather rely upon the judgment of the Senator from Kentucky on

any other question, than in regard to the veto power. He has suffered so

much from its exercise as to render it almost impossible that he can be

an impartial judge. History will record the long and memorable struggle

between himself and a distinguished ex-President, now in retirement.

This was no common party strife. Their mighty war shook the whole

Republic to its centre. The one swayed the majority in both Houses of

Congress; whilst the other was sustained by a majority of the people.

Under the lead of the one, Congress passed bills to establish a Bank of

the United States;—to commence a system of internal improvements;—and to

distribute the proceeds of the public lands among the several States;

whilst the other, strong in his convictions of duty, and strong in his

belief that the voice of the sovereign people would condemn these

measures of their representatives, vetoed them every one. And what was

the result? Without, upon the present occasion, expressing an opinion on

any one of these questions, was it not rendered manifest that the

President elected by the mass of the people, and directly responsible to

them for his conduct, understood their will and their wishes better than

the majority in the Senate and House of Representatives? No wonder then

that the Senator from Kentucky should detest the veto power. It ought

never to be torn from its foundation in the Constitution by the rash

hands of a political party, impelled to the deed under the influence of

defeated hopes and disappointed ambition.

I trust now that I shall be able to prove that the Senator from Kentucky

has entirely mistaken the character of the veto power; that in its

origin and nature it is peculiarly democratic; that in the qualified

form in which it exists in our Constitution, it is but a mere appeal by

the President of the people’s choice from the decision of Congress to

the people themselves; and that whilst the exercise of this power has

done much good, it never has been, and never can be, dangerous to the

rights and liberties of the people.

This is not “an arbitrary and monarchical power;” it is not “a

monarchical prerogative,” as it has been designated by the Senator. If

it were, I should go with him, heart and hand, for its abolition. What

is a monarchical prerogative? It is a power vested in an emperor or

king, neither elected by, nor responsible to, the people, to maintain

and preserve the privileges of his throne. The veto power in the hands

of such a sovereign has never been exerted, and never will be exerted,

except to arrest the progress of popular liberty, or what he may term

popular encroachment. It is the character of the public agent on whom

this power is conferred, and not the nature of the power itself, which

stamps it either as democratic or arbitrary. In its origin we all know

that it was purely democratic. It owes its existence to a revolt of the

people of Rome against the tyrannical decrees of the Senate. They

retired from the city to the Sacred Mount, and demanded the rights of

freemen. They thus extorted from the aristocratic Senate a decree

authorizing them annually to elect tribunes of the people. On these

tribunes was conferred the power of annulling any decree of the Senate,

by simply pronouncing the word “_veto_.” This very power was the only

one by means of which the Democracy of Rome exercised any control over

the government of the republic. It was their only safeguard against the

oppression and encroachments of the aristocracy. It is true that it did

not enable the people, through their tribunes, to originate laws; but it

saved them from all laws of the Senate which encroached on their rights

and liberties.

Now, sir, let me ask the Senator from Kentucky, was this an arbitrary

and monarchical power? No, sir; it was strictly democratic. And why?

Because it was exercised by tribunes elected by the people, and

responsible annually to the people; and I shall now attempt to prove

that the veto power, under our Constitution, is of a similar character.

Who is the President of the United States, by whom this power is to be

exercised? He is a citizen, elected by his fellow-citizens to the

highest official trust in the country, and directly responsible to them

for the manner in which he shall discharge his duties. From the manner

in which he is elected, he more nearly represents a majority of the

whole people of the United States than any other branch of the

Government. Sir, one-fourth of the people may elect a decided majority

of the Senate. Under the Constitution, we are the representatives of

sovereign States, and little Delaware has an equal voice in this body

with the Empire State. How is it in regard to the House of

Representatives? Without a resort to the gerrymandering process which of

late years has become so common, it may often happen, from the

arrangement of the Congressional districts, that a minority of the

people of a State will elect a majority of representatives to Congress.

Not so in regard to the President of the United States. From necessity,

he must be elected by the mass of the people in the several States. He

is the creature of the people—the mere breath of their nostrils—and on

him, as the tribune of the people, have they conferred the veto power.

Is there any serious danger that such a magistrate will ever abuse this

power? What earthly inducement can he have to pursue such a course? In

the first place, during his first term, he will necessarily feel anxious

to obtain the stamp of public approbation on his conduct, by a

re-election. For this reason, if no other existed, he will not array

himself, by the exercise of the veto power, against a majority in both

Houses of Congress, unless in extreme cases, where, from strong

convictions of public duty, he may be willing to draw down upon himself

their hostile influence.

In the second place, the Constitution leaves him in a state of

dependence on Congress. Without their support, no measure recommended by

him can become a law, and no system of policy which he may have devised

can be carried into execution. Deprived of their aid, he can do nothing.

Upon their cordial co-operation the success and glory of his

administration must, in a great degree, depend. Is it, then, at all

probable that he would make war upon Congress, by refusing to sanction

any one of their favorite measures, unless he felt deeply conscious that

he was acting in obedience to the will of the people, and could appeal

to them for support? Nothing short of such a conviction, unless it be to

preserve his oath inviolate to support the Constitution, will ever

induce him to exercise a power always odious in the eyes of the majority

in Congress, against which it is exerted.

But there is still another powerful influence which will prevent his

abuse of the veto power. The man who has been elevated by his

fellow-citizens to the highest office of trust and dignity which a great

nation can bestow, must necessarily feel a strong desire to have his

name recorded in untarnished characters on the page of his country’s

history, and to live after death in the hearts of his countrymen. This

consideration would forbid the abuse of the veto power. What is

posthumous fame in almost every instance? Is it not the voice of

posterity re-echoing the opinion of the present generation? And what

body on the earth can give so powerful an impulse to public opinion, at

least in this country, as the Congress of the United States? Under all

these circumstances, we must admit that the opinion expressed by the

Federalist is sound, and that “it is evident that there would be greater

danger of his not using his power when necessary, than of his using it

too often or too much.” Such must also have been Mr. Jefferson’s

opinion. When consulted by General Washington in April, 1792, as to the

propriety of vetoing “the act for an apportionment of Representatives

among the several States, according to the first enumeration,” what was

his first reason in favor of the exercise of this power upon that

occasion? “Viewing the bill,” says he, “either as a violation of the

Constitution, or as giving an inconvenient exposition to its words, is

it a case wherein the President ought to interpose his negative?” “I

think it is.” “_The non user of his negative power begins already to

excite a belief that no President will ever venture to use it; and

consequently, has begotten a desire to raise up barriers in the State

legislatures against Congress throwing off the control of the

Constitution._” I shall not read the other reasons he has assigned, none

of them being necessary for my present purpose. Perilous, indeed, I

repeat, is the exercise of the veto power, and “no President will ever

venture to use it,” unless from the strongest sense of duty, and the

strongest conviction that it will receive the public approbation.

But, after all, what is the nature of this qualified veto under the

Constitution? It is, in fact, but an appeal taken by the President from

the decision of Congress, in a particular case, to the tribunal of the

sovereign people of the several States, who are equally the masters of

both. If they decide against the President, their decision must finally

prevail, by the admission of the Senator himself. The same President

must either carry it into execution himself, or the next President whom

they elect, will do so. The veto never can do more than postpone

legislative action on the measure of which it is the subject, until the

will of the people can be fairly expressed. This suspension of action,

if the people should not sustain the President, will not generally

continue longer than two years, and it cannot continue longer than four.

If the people, at the next elections, should return a majority to

Congress hostile to the veto, and the same measure should be passed a

second time, he must indeed be a bold man, and intent upon his own

destruction, who would, a second time, arrest it by his veto. After the

popular voice has determined the question, the President would always

submit, unless, by so doing, he clearly believed he would involve

himself in the guilt of perjury, by violating his oath to support the

Constitution. At the end of four years, however, in any and every event,

the popular will must and would be obeyed by the election of another

President.

Sir, the Senator from Kentucky, in one of those beautiful passages which

always abound in his speeches, has drawn a glowing picture of the

isolated condition of kings, whose ears the voice of public opinion is

never permitted to reach; and he has compared their condition in this

particular, with that of the President of the United States. Here too,

he said, the Chief Magistrate occupied an isolated station, where the

voice of his country and the cries of its distress could not reach his

ear. But is there any justice in this comparison? Such a picture may be

true to the life when drawn for an European monarch; but it has no

application whatever to a President of the United States. He, sir, is no

more than the first citizen of this free Republic. No form is required

in approaching his person, which can prevent the humblest of his

fellow-citizens from communicating with him. In approaching him, a

freeman of this land is not compelled to decorate himself in fantastic

robes, or adopt any particular form of dress, such as the court

etiquette of Europe requires. The President, intermingles freely with

his fellow-citizens, and hears the opinions of all. The public press

attacks him—political parties, in and out of Congress, assail him, and

the thunders of the Senator’s own denunciatory eloquence are

reverberated from the Capitol, and reach the White House before its

incumbent can lay his head upon his pillow. His every act is subjected

to the severest scrutiny, and he reads in the newspapers of the day the

decrees of public opinion. Indeed, it is the privilege of everybody to

assail him. To contend that such a Chief Magistrate is isolated from the

people, is to base an argument upon mere fancy, and not upon facts. No,

sir; the President of the United States is more directly before the

people, and more immediately responsible, than any other department of

our Government: and woe be to that President who shall ever affect to

withdraw from the public eye, and seclude himself in the recesses of the

Executive mansion!

The Senator has said, and with truth, that no veto of the President has

ever been overruled, since the origin of the Government. Not one.

Although he introduced this fact for another purpose than that which now

induces me to advert to it, yet it is not the less true on that account.

Is not this the strongest possible argument to prove that there never

yet has been a veto, in violation of the public will?

[Here Mr. Clay observed that there had been repeated instances of

majorities in Congress deciding against vetoes.]

Mr. Buchanan resumed. I am now speaking of majorities, not of Congress,

but of the people. I shall speak of majorities in Congress presently.

Why, sir, has no veto been ever overruled? Simply because the President

has never exercised, and never will exercise, this perilous power on any

important occasion, unless firmly convinced that he is right, and that

he will be sustained by the people. Standing alone, with the whole

responsibility of his high official duties pressing upon him, he will

never brave the enormous power and influence of Congress, unless he

feels a moral certainty that the people will come to the rescue. When he

ventures to differ from Congress and appeal to the people, the chances

are all against him. The members of the Senate and the House are

numerous, and are scattered over the whole country, whilst the President

is but an individual confined to the city of Washington. Their personal

influence with their constituents is, and must be, great. In such a

struggle, he must mainly rely upon the palpable justice of his cause.

Under these circumstances, does it not speak volumes in favor of the

discretion with which the veto power has been exercised, that it has

never once been overruled, in a single instance, since the origin of the

Government, either by a majority of the people in the several States, or

by the constitutional majority in Congress.

It is truly astonishing how rarely this power has ever been exercised.

During the period of more than half a century which has elapsed since

the meeting of the first Congress under the Constitution, about six

thousand legislative acts have been passed. How many of these, sir, do

you suppose have been disapproved by the President? Twenty, sir; twenty

is the whole number. I speak from a list now in my hand prepared by one

of the clerks of the Senate. And this number embraces not merely those

bills which have been actually vetoed; but all such as were retained by

him under the Constitution, in consequence of having been presented at

so late a period of the session that he could not prepare his objections

previous to the adjournment. Twenty is the sum total of all!

Let us analyze these vetoes (for I shall call them all by that name) for

a few moments. Of the twenty, eight were on bills of small comparative

importance, and excited no public attention. Congress at once yielded to

the President’s objections, and in one remarkable instance, a veto of

General Jackson was laid upon the table on the motion of the Senator

from Kentucky himself. No attempt was even made to pass the bill in

opposition to this veto, and no one Senator contested its propriety.

Eleven of the twelve remaining vetoes upon this list, relate to only

three subjects. These are, a Bank of the United States; internal

improvements in different forms; and the distribution of the proceeds of

the public lands among the several States. There have been four vetoes

of a Bank of the United States; one by Mr. Madison, one by General

Jackson, and two by Mr. Tyler. There have been six vetoes on internal

improvements, in different forms; one by Mr. Madison, one by Mr. Monroe,

and four by General Jackson. And General Jackson vetoed the bill to

distribute the proceeds of the sales of the public lands among the

several States. These make the eleven.

The remaining veto was by General Washington; and it is remarkable that

it should be the most questionable exercise of this power which has ever

occurred. I refer to his second and last veto, on the first of March,

1797, and but three days before he retired from office, on the “Act to

alter and amend an act, entitled an act to ascertain and fix the

military establishment of the United States.” In this instance, there

was a majority of nearly two-thirds in the House of Representatives,

where it originated, in favor of passing the act, notwithstanding the

objections of the Father of his Country. The vote was fifty-five in the

affirmative to thirty-six in the negative. This act provided for the

reduction of the military establishment of the country; and the day will

probably never again arrive when any President will venture to veto an

act reducing the standing army of the United States.

Then in the range of time since the year 1789, there have been but

twenty vetoes; and eleven of these related to only three subjects which

have radically divided the two great political parties of the country.

With the exception of twenty, all of the acts which have ever passed

Congress, have been allowed to take their course without any executive

interference.

That this power has never been abused, is as clear as the light of the

sun. I ask Senators, and I appeal to you, sir, whether the American

people have not sanctioned every one of the vetoes on the three great

subjects to which I have referred. Yes, sir, every one, not excepting

those on the Fiscal Bank and Fiscal Corporation—the leading measures of

the extra session. Notwithstanding the solemn denunciation against the

President, made by the Whig party, and their appeal to the people, there

has been no election held since that session in which the people have

not declared, in a voice of thunder, their approbation of the two vetoes

of President Tyler. I shall not, upon the present occasion, discuss the

question whether all or any of these vetoes were right or wrong. I

merely state the incontrovertible fact that they have all been approved

by the American people.

The character of the bills vetoed shows conclusively the striking

contrast between the veto power when entrusted to an elective and

responsible chief magistrate, and when conferred upon a European

sovereign as a royal prerogative. All the vetoes which an American

President has imposed on any important act of Congress, except the one

by General Washington, to which I have alluded, have been so many

instances of self-denial. These acts have all been returned, accompanied

by messages remonstrating against the extension of executive power,

which they proposed to grant. Exerting the influence which these acts

proposed to confer upon him, the President might, indeed, have made long

strides towards the attainment of monarchical power. Had a national bank

been established under his control, uniting the moneyed with the

political power of the country; had a splendid system of internal

improvements been adopted and placed under his direction, presenting

prospects of pecuniary advantage to almost every individual throughout

the land; and in addition to all this, had the States become pensioners

on the bounty of the Federal Government for the amount of the proceeds

of the sales of the public lands, we might soon have witnessed a

powerful consolidated Government, with a chief at its head, far

different from the plain and unpretending President recognized by the

Constitution. The General Government might then have become everything,

whilst the State governments would have sunk to nothing. Thanks to the

vetoes of our Presidents, and not to Congress, that most of these evils

have been averted. Had these acts been all approved by the President, it

is my firm conviction that the Senator himself would as deeply have

deplored the consequences as any other true patriot, and that he would

forever have regretted his own agency in substantially changing the form

of our Government. Had these bills become laws, the executive power

would then have strode over all the other powers of the Constitution;

and then, indeed, the Senator might have justly compared the President

of the United States with the monarchs of Europe. Our Presidents have

had the self-denying firmness to render all these attempts abortive to

bestow on themselves extraordinary powers, and have been content to

confine themselves to those powers conferred on them by the

Constitution. They have protected the rights of the States and of the

people from the unconstitutional means of influence which Congress had

placed within their grasp. Such have been the consequences of the veto

power in the hands of our elective chief magistrate.

For what purposes has this power been exerted by European monarchs, with

whom our President has been compared? When exercised at all, it has

always been for the purpose of maintaining the royal prerogative and

arresting the march of popular liberty. There have been but two

instances of its exercise in England since the Revolution of 1688. The

first was in 1692, by William the Third, the rival of Louis the

Fourteenth, and beyond question the ablest man who has sat upon the

throne of Great Britain for the last century and a half. He had the

hardihood to veto the Earl of Shrewsbury’s bill, which had passed both

houses, limiting the duration of Parliaments to three, instead of seven

years, and requiring annual sessions to be held. He dreaded the

influence which members of the House of Commons, responsible to their

constituents at the end of each period of three years, might exert

against his royal power and prerogatives; and, therefore, held on by

means of the veto to septennial Parliaments. And what did George the

Third? In 1806 he vetoed the Catholic Emancipation bill, and thus

continued to hold in political bondage millions of his fellow-men,

because they insisted upon worshipping their God according to the

dictates of their own consciences.

[Here Mr. Clay observed that this was a mistake, and expressed his

belief that, upon the occasion alluded to, the matter had gone no

further than the resignation of the Grenville administration.]

Mr. Buchanan. I shall then read my authority. It is to be found in

“Random Recollections of the House of Lords, by Mr. Grant,” page 25. The

author says:

“But if the king refuses his signature to it, [a bill] _as George the

Third did in the case of the Catholic Emancipation bill of 1806_, it

necessarily falls to the ground. The way in which the king intimates his

determination not to give his assent to the measure, is not by a

positive refusal in so many words; he simply observes, in answer to the

application made to him for that purpose, ‘Le roi s’avisera,’ namely,

‘The king will consider of it,’ which is understood to be a final

determination not to sanction the measure.”

But, sir, be this author correct or incorrect, as to the existence of a

veto in 1806, it is a matter of trifling importance in the present

argument.[71] I admit that the exercise of the veto power has fallen

into disuse in England since the revolution. And what are the reasons?

First, because its exercise by a hereditary sovereign to preserve

unimpaired the prerogatives of the crown against the voice of the

people, is always an odious exertion of the royal prerogative. It is far

different from its exercise by an elective magistrate, acting in the

character of a tribune of the people, to preserve their rights and

liberties unimpaired. And secondly, because this veto power is no longer

necessary to secure the prerogatives of the crown against the assaults

of popular liberty.

Two centuries ago, the people of England asserted their rights by the

sword against their sovereign. They dethroned and beheaded him. Since

that time, the kings of England have changed their course. They have

discovered from experience that it was much easier to govern Parliament

by means of the patronage and money at the command of the crown, than

openly to resist it by the veto power. This system has succeeded

admirably. Influence has taken the place of prerogative; and since the

days of Walpole, when the votes of members were purchased almost without

disguise, corruption has nearly destroyed the independent action of

Parliament. It has now descended into the ranks of the people, and

threatens destruction to the institutions of that country. In the recent

contest for power between the Whigs and the Tories, the bargain and sale

of the votes of the electors was open and notorious. The bribery and

corruption of both parties sought no disguise. In many places the price

of a vote was fixed, like any other commodity in the market. These

things have been proclaimed without contradiction on the floor of

Parliament. The Tories had the most money to expend; and the cause of

dear bread, with a starving population, prevailed over the modification

or repeal of the corn laws. In a country so venal, it is easy for the

crown, by a politic distribution of its honors, offices and emoluments,

and if these should all fail, by a direct application of money, to

preserve its prerogatives without the use of the veto power.

Besides, the principal ministers of the crown are always members of the

House of Lords or the House of Commons. It is they who originate the

important laws; and they, and they alone, are responsible, because it is

a maxim of the British government, that the king can do no wrong. If

they cannot maintain a majority in Parliament by the use of the

patronage and influence of the crown, they must yield their places to

their successful rivals; and the king, without the least hesitation,

will receive as his confidential advisers to-morrow, the very men whose

principles he had condemned but yesterday. Such is a king of England. He

can do no wrong.

On one memorable occasion, when the ministers of the crown themselves—I

refer to the coalition administration of Mr. Fox and Lord North—had

passed their East India Bill through the House of Commons, it was

defeated in the House of Lords by the direct personal influence of the

sovereign. George the Third, it is known, would have vetoed that bill,

had it passed the House of Lords; and well he might. It was an attempt

by his own ministers to obtain possession of the wealth and the power of

India, and to use them for the purpose of controlling both the sovereign

and the people of England. This was not the common case of a mere

struggle between opposite parties as to which should administer the

government, about which the sovereign of England might be perfectly

indifferent; but it was an attempt to deprive the crown of its power and

prerogatives.

Under such circumstances, can the Senator seriously contend that,

because the veto power has been disused by the kings of England,

therefore, it ought to be taken from the President of the United States?

The king is a hereditary sovereign—the President an elective magistrate.

The king is not responsible to the people for the administration of the

executive government—the President is alone responsible. The king could

feel no interest in using the veto power, except to maintain the

prerogatives of the crown; and it has been shown to be wholly

unnecessary for this purpose; whilst the President has never exerted it

on any important occasion, but in obedience to the public will, and then

only for the purpose of preventing encroachment by Congress on the

Constitution of the country, on the rights of the States, and on the

liberties of the people.

The Senator is mistaken in supposing that the veto power has never been

exercised in France. It is true, I believe, that it has never been

exerted by the government of Louis Philippe; but his government is as

yet nothing but a mere experiment. It has now existed less than twelve

years, and during this short period there have been nineteen different

cabinets. I saw a list of them a few days ago, in one of the public

journals. To cite the example of such a government as authority here, is

to prove that a Senator is hard run for arguments. The unfortunate Louis

the Sixteenth, used the suspensive veto power conferred upon him by the

first French Constitution, upon more than one occasion; but he used it

not to enforce the will of the people as our Presidents have done, but

against public opinion, which was at that time omnipotent in France.

These vetoes proved but a feeble barrier against the tremendous torrent

of the Revolution, which was at that time overwhelming all the corrupt

and tyrannical institutions of the ancient monarchy.

The Senator has referred to the Declaration of Independence, to show

that the exercise of this veto power by the king on the acts of the

colonial legislature was one of the causes of the Revolution. In that

instrument he is charged with having “refused his assent to laws the

most wholesome and necessary for the public good.” In those days a

douceur was presented, in Pennsylvania, to the proprietary governor,

with every act of assembly in which the people felt a deep interest. I

state this fact on the authority of Dr. Franklin. After the act was

approved by the governor, it had then to be sent three thousand miles

across the Atlantic for the approbation of a hereditary sovereign, in no

manner responsible to the people of this country. It would have been

strange, indeed, had not this power been abused under such

circumstances. This was like the veto of Augustus after he had usurped

the liberties of the Roman people, and made himself sole tribune—not

like that of the tribunes annually elected by the Roman people. This was

not the veto of James Madison, Andrew Jackson, or John Tyler—not the

veto of a freeman, responsible to his fellow-freemen for the faithful

and honest exercise of his important trust. This power is either

democratic or arbitrary, as the authority exercising it may be dependent

on the people or independent of them.

But, sir, this veto power, which I humbly apprehend to be useful in

every State government, becomes absolutely necessary under the peculiar

and complex form of the Federal Government. To this point I desire

especially to direct the attention of the Senate. The Federal

Constitution was a work of mutual compromise and concession; and the

States which became parties to it, must take the evil with the good. A

majority of the people within each of the several States have the

inherent right to change, modify, and amend their Constitution at

pleasure. Not so with respect to the Federal Constitution. In regard to

it, a majority of the people of the United States can exercise no such

power. And why? Simply because they have solemnly surrendered it, in

consideration of obtaining by this surrender all the blessings and

benefits of our glorious Union. It requires two-thirds of the

representatives of the States in the Senate, and two-thirds of the

representatives of the people in the House, even to propose an amendment

to the Constitution; and this must be ratified by three-fourths of the

States before it can take effect. Even if twenty-five of the twenty-six

States of which the Union is composed should determine to deprive

“little Delaware” of her equal representation in the Senate, she could

defy them all, whilst this Constitution shall endure. It declares that

“no State, without its consent, shall be deprived of its equal suffrage

in the Senate.”

As the Constitution could not have been adopted except by a majority of

the people in every State of the Union, the members of the convention

believed that it would be reasonable and just to require that

three-fourths of the States should concur in changing that which _all_

had adopted, and to which _all_ had become parties. To give it a binding

force upon the conscience of every public functionary, each Senator and

Representative, whether in Congress or the several State legislatures,

and every executive and judicial officer, whether State or Federal, is

bound solemnly to swear or affirm that he will support the Constitution.

Now, sir, it has been said, and said truly by the Senator, that the will

of the majority ought to prevail. This is an axiom in the science of

liberty, which nobody at the present day will dispute. Under the Federal

Constitution, this will must be declared in the manner which it has

prescribed; and sooner or later, the majority must and will be obeyed in

the enactment of laws. But what is this majority to which we are all

bound to yield? Is it the majority of Senators and Representatives in

Congress, or a majority of the people themselves? The fallacy of the

Senator’s argument, from beginning to end, consists in the assumption

that Congress, in every situation and under every circumstance, truly

represents the deliberate will of the people. The framers of the

Constitution believed it might be otherwise, and therefore they imposed

the restriction of the qualified veto of the President upon the

legislative action of Congress.

What is the most glorious and useful invention of modern times in the

science of free government? Undoubtedly, written constitutions. For want

of these, the ancient republics were scenes of turbulence, violence and

disorder, and ended in self-destruction. And what are all our

constitutions, but restraints imposed, not by arbitrary authority, but

by the people upon themselves and their own representatives? Such

throughout is the character of the Federal Constitution. And it is this

Constitution thus restricted, which has so long secured our liberty and

prosperity, and has endeared itself to the heart of every good citizen.

This system of self-imposed restraints is a necessary element of our

social condition. Every wise and virtuous man adopts resolutions by

which he regulates his conduct, for the purpose of counteracting the

evil propensities of his nature, and preventing him from yielding under

the impulses of sudden and strong temptation. Is such a man the less

free—the less independent, because he chooses to submit to these

self-imposed restraints? In like manner, is the majority of the people

less free and less independent, because it has chosen to impose

constitutional restrictions upon itself and its representatives? Is this

any abridgment of popular liberty? The true philosophy of republican

government, as the history of the world has demonstrated, consists in

the establishment of such counteracting powers,—powers always created by

the people themselves,—as shall render it morally certain that no law

can be passed by their servants which shall not be in accordance with

their will, and calculated to promote their good.

It is for this reason that a senate has been established in every State

of the Union to control the House of Representatives: and I presume

there is scarcely an individual in the country who is not convinced of

its necessity. Fifty years ago, opinions were much divided upon this

subject, and nothing but experience has settled the question. In France,

the National Assembly, although they retained the king, rejected a

senate as aristocratic, and our own Franklin was opposed to it. He

thought that the popular branch was alone necessary to reflect the will

of the people, and that a senate would be but a mere incumbrance. His

influence prevailed in the convention which framed the first

constitution for Pennsylvania, and we had no senate. The Doctor’s

argument against it was contained in one of his homely but striking

illustrations. Why, said he, will you place a horse in front of a cart

to draw it forward, and another behind to draw it back? Experience,

which is the wisest teacher, has demonstrated the fallacy of this and

all other similar arguments, and public opinion is now unanimous on the

subject. Where is the man who does not now feel that the control of a

senate is necessary to restrain and modify the action of the popular

branch?

And how is our own Senate composed? One-fourth of the people of this

Union, through the agency of the State legislatures, can send a majority

into this chamber. A bill may pass the House of Representatives by a

unanimous vote, and yet be defeated here by a majority of Senators

representing but one-fourth of the people of the United States. Why does

not the Senator from Kentucky propose to abolish the Senate? His

argument would be much stronger against its existence than against that

of the veto power in the hands of a Chief Magistrate, who, in this

particular, is the true representative of the majority of the whole

people.

All the beauty, and harmony, and order of the universe arise from

counteracting influences. When its great Author, in the beginning, gave

the planets their projective impulse, they would have rushed in a

straight line through the realms of boundless space, had he not

restrained them within their prescribed orbits by the counteracting

influence of gravitation. All the valuable inventions in mechanics

consist in blending simple powers together so as to restrain and

regulate the action of each other. Restraint—restraint—not that imposed

by arbitrary and irresponsible power, but by the people themselves, in

their own written constitutions, is the great law which has rendered

Democratic Representative Government so successful in these latter

times. The best security which the people can have against abuses of

trust by their public servants, is to ordain that it shall be the duty

of one class of them to watch and restrain another. Sir, this Federal

Government, in its legislative attributes, is nothing but a system of

restraints from beginning to end. In order to enact any bill into a law,

it must be passed by the representatives of the people in the House, and

also by the representatives of the sovereign States in the Senate,

where, as I have observed before, it may be defeated by Senators from

States containing but one-fourth of the population of the country. After

it has undergone these two ordeals, it must yet be subjected to that of

the Executive, as the tribune of the whole people, for his approbation.

If he should exercise his veto power, it cannot become a law unless it

be passed by a majority of two-thirds of both Houses. These are the

mutual restraints which the people have imposed on their public

servants, to preserve their own rights and those of the States from

rash, hasty, and impolitic legislation. No treaty with a foreign power

can be binding upon the people of this country unless it shall receive

the assent of the President and two-thirds of the Senate; and this is

the restraint which the people have imposed on the treaty-making power.

All these restraints are peculiarly necessary to protect the rights and

preserve the harmony of the different States which compose our Union. It

now consists of twenty-six distinct and independent States, and this

number may yet be considerably increased. These States differ

essentially from each other in their domestic institutions, in the

character of their population, and even, to some extent, in their

language. They embrace every variety of soil, climate, and productions.

In an enlarged view, I believe their interests to be all identical;

although, to the eye of local and sectional prejudice, they always

appear to be conflicting. In such a condition, mutual jealousies must

arise, which can only be repressed by that mutual forbearance which

pervades the Constitution. To legislate wisely for such a people is a

task of extreme delicacy, and requires much self-restraining prudence

and caution. In this point of view, I firmly believe that the veto power

is one of the best safeguards of the Union. By this power, the majority

of the people in every State have decreed that the existing laws shall

remain unchanged, unless not only a majority in each House of Congress,

but the President also, shall sanction the change. By these wise and

wholesome restrictions, they have secured themselves, so far as human

prudence can, against hasty, oppressive, and dangerous legislation.

The rights of the weaker portions of the Union will find one of their

greatest securities in the veto power. It would be easy to imagine

interests of the deepest importance to particular sections which might

be seriously endangered by its destruction. For example, not more than

one-third of the States have any direct interest in the coasting trade.

This trade is now secured to American vessels, not merely by a

protective duty, but by an absolute prohibition of all foreign

competition. Suppose the advocates of free trade run mad should excite

the jealousy of the Senators and Representatives from the other

two-thirds of the States against this comparatively local interest, and

convince them that this trade ought to be thrown open to foreign

navigation. By such a competition, they might contend that the price of

freight would be reduced, and that the producers of cotton, wheat, and

other articles ought not to be taxed in order to sustain such a monopoly

in favor of their own ship building and navigating interest. Should

Congress, influenced by these or any other consideration, ever pass an

act to open this trade to the competition of foreigners, there is no man

fit to fill the executive chair who would not place his veto upon it,

and thus refer the subject to the sober determination of the American

people. To deprive the navigating States of this privilege, would be to

aim a deadly blow at the very existence of the Union.

Let me suppose another case of a much more dangerous character. In the

Southern States, which compose the weaker portion of the Union, a

species of property exists which is now attracting the attention of the

whole civilized world. These States never would have become parties to

the Union, had not their rights in this property been secured by the

Federal Constitution. Foreign and domestic fanatics—some from the belief

that they are doing God’s service, and others from a desire to divide

and destroy this glorious Republic—have conspired to emancipate the

Southern slaves. On this question, the people of the South, beyond the

limits of their own States, stand alone and unsupported by any power on

earth, except that of the Northern Democracy. These fanatical

philanthropists are now conducting a crusade over the whole world, and

are endeavoring to concentrate the public opinion of all mankind against

this right of property. Suppose they should ever influence a majority in

both Houses of Congress to pass a law, not to abolish this property—for

that would be too palpable a violation of the Constitution—but to render

it of no value, under the letter, but against the spirit of some one of

the powers granted; will any lover of his country say that the President

ought not to possess the power of arresting such an act by his veto,

until the solemn decision of the people should be known on this

question, involving the life or death of the Union? We, sir, of the

non-slaveholding States, entered the Union upon the express condition

that this property should be protected. Whatever may be our own private

opinions in regard to slavery in the abstract, ought we to hazard all

the blessings of our free institutions—our Union and our strength—in

such a crusade against our brethren of the South? Ought we to jeopard

every political right we hold dear, for the sake of enabling these

fanatics to invade Southern rights, and render that fair portion of our

common inheritance a scene of servile war, rapine, and murder? Shall we

apply the torch to the magnificent temple of human liberty which our

forefathers reared at the price of their blood and treasure, and permit

all we hold dear to perish in the conflagration? I trust not.

It is possible that at some future day the majority in Congress may

attempt, by indirect means, to emancipate the slaves of the South. There

is no knowing through what channel the ever active spirit of fanaticism

may seek to accomplish its object. The attempt may be made through the

taxing power, or some other express power granted by the Constitution.

God only knows how it may be made. It is hard to say what means

fanaticism may not adopt to accomplish its purpose. Do we feel so

secure, in this hour of peril from abroad and peril at home, as to be

willing to prostrate any of the barriers which the Constitution has

reared against hasty and dangerous legislation? No, sir, never was the

value of the veto power more manifest than at the present moment. For

the weaker portion of the Union, whose constitutional rights are now

assailed with such violence, to think of abandoning this safeguard,

would be almost suicidal. It is my solemn conviction, that there never

was a wiser or more beautiful adaptation of theory to practice in any

government than that which requires a majority of two-thirds in both

Houses of Congress to pass an act returned by the President with his

objections, under all the high responsibilities which he owes to his

country.

Sir, ours is a glorious Constitution. Let us venerate it—let us stand by

it as the work of great and good men, unsurpassed in the history of any

age or nation. Let us not assail it rashly with our invading hands, but

honor it as the fountain of our prosperity and power. Let us protect it

as the only system of government which could have rendered us what we

are in half a century, and enabled us to take the front rank among the

nations of the earth. In my opinion, it is the only form of government

which can preserve the blessings of liberty and prosperity to the

people, and at the same time secure the rights and sovereignty of the

States. Sir, the great mass of the people are unwilling that it shall be

changed. Although the Senator from Kentucky, to whom I cannot and do not

attribute any but patriotic motives, has brought himself to believe that

a change is necessary, especially in the veto power, I must differ from

him entirely, convinced that his opinions on this subject are based upon

fallacious theories of the nature of our institutions. This view of his

opinions is strengthened by his declarations the other day as to the

illimitable rights of the majority in Congress. On that point he differs

essentially from the framers of the Constitution. They believed that the

people of the different States had rights which might be violated by

such a majority; and the veto power was one of the modes which they

devised for preventing these rights from being invaded.

The Senator, in support of his objections to the veto power, has used

what he denominates a numerical argument, and asks, can it be supposed

that any President will possess more wisdom than nine Senators and forty

Representatives. (This is the number more than a bare majority of each

body which would at present be required to pass a bill by a majority of

two-thirds.) To this question, my answer is, no, it is not to be so

supposed at all. All that we have to suppose is, what our ancestors, in

their acknowledged wisdom, did suppose; that Senators and

Representatives are but mortal men, endowed with mortal passions and

subject to mortal infirmities; that they are susceptible of selfish and

unwise impulses, and that they do not always and under all

circumstances, truly reflect the will of their constituents. These

founders of our Government, therefore, supposed the possibility that

Congress might pass an act through the influence of unwise or improper

motives; and that the best mode of saving the country from the evil

effects of such legislation was to place a qualified veto in the hands

of the people’s own representative, the President of the United States,

by means of which, unless two-thirds of each House of Congress should

repass the bill, the question must be brought directly before the people

themselves. These wise men had made the President so dependent on

Congress that they knew he would never abuse this power, nor exert it

unless from the highest and most solemn convictions of duty; and

experience has established their wisdom and foresight.

As to the Senator’s numerical argument, I might as well ask him, is it

to be supposed that we are so superior in wisdom to the members of the

House that the vote of one Senator ought to annul the votes of

thirty-two Representatives? And yet the bill to repeal the bankrupt law

has just been defeated in this body by a majority of one, although it

had passed the House by a majority of thirty-two. The Senator’s

numerical argument, if it be good for anything at all, would be good for

the abolition of the Senate as well as of the veto; and would lead at

once to the investment of all the powers of legislation in the popular

branch alone. But experience has long exploded this theory throughout

the world. The framers of the Constitution, in consummate wisdom,

thought proper to impose checks, and balances, and restrictions on their

Governmental agents; and woe betide us, if the day should ever arrive

when they shall be removed.

But I must admit that another of the Senator’s arguments is perhaps not

quite so easily refuted, though, I think, it is not very difficult to

demonstrate its fallacy. It is undoubtedly his strongest position. He

says that the tendency of the veto power is to draw after it all the

powers of legislation; and that Congress, in passing laws, will be

compelled to consult, not the good of the country alone, but to

ascertain, in the first instance, what the President will approve, and

then regulate their conduct according to his predetermined will.

This argument presupposes the existence of two facts, which must be

established before it can have the least force. First, that the

President would depart from his proper sphere, and attempt to influence

the initiatory legislation of Congress: and, second, that Congress would

be so subservient as to originate and pass laws, not according to the

dictates of their own judgment, but in obedience to his expressed

wishes. Now, sir, does not the Senator perceive that his argument proves

too much? Would not the President have precisely the same influence over

Congress, so far as his patronage extends, as if the veto had never

existed at all? He would then resemble the King of England, whose veto

power has been almost abandoned for the last hundred and fifty years. If

the President’s power and patronage were coextensive with that of the

king, he could exercise an influence over Congress similar to that which

is now exerted over the British Parliament, and might control

legislation in the same manner.

Thus, sir, you perceive that to deprive the President of the veto power,

would afford no remedy against executive influence in Congress, if the

President were disposed to exert it. Nay, more—it would encourage him to

interfere secretly with our legislative functions, because, deprived of

the veto power, his only resource would be to intrigue with members of

Congress for the purpose of preventing the passage of measures which he

might disapprove. At present this power enables him to act openly and

boldly, and to state his reasons to the country for refusing his assent

to any act passed by Congress.

Again: does not the Senator perceive that this argument is a direct

attack upon the character of Congress? Does he not feel that the whole

weight of his argument in favor of abolishing the veto power, rests upon

the wisdom, integrity, and independence of that body? And yet we are

told that in order to prevent the application of the veto, we shall

become so subservient to the Executive, that in the passage of laws we

will consult his wishes rather than our own independent judgment. The

venality and baseness of Congress are the only foundations on which such

an argument can rest; and yet it is the presumption of their integrity

and wisdom on which the Senator relies for the purpose of proving that

the veto power is wholly unnecessary, and ought to be abolished.

In regard to this thing of executive influence over Congress, I have a

few words to say. Sir, I have been an attentive observer of

Congressional proceedings for the last twenty years, and have watched

its operations with an observing eye. I shall not pretend to say that it

does not exist to some extent; but its power has been greatly overrated.

It can never become dangerous to liberty, unless the patronage of the

Government should be enormously increased by the passage of such

unconstitutional and encroaching laws as have hitherto fallen under the

blow of the veto power.

The Executive, indeed, will always have personal friends, as well as

ardent political supporters of his administration in Congress, who will

strongly incline to view his measures with a favorable eye. He will also

have, both in and out of Congress, expectants who look to him for a

share of the patronage at his disposal. But, after all, to what does

this amount?

Whilst the canvass is proceeding previous to his election, the

expectations of candidates for office will array around him a host of

ardent and active friends. But what is his condition after the election

has passed, and the patronage has been distributed? Let me appeal to the

scene which we all witnessed in this city, at and after the inauguration

of the late lamented President. It is almost impossible that one office

seeker in fifty could have been gratified. What is the natural and

necessary result of such numerous disappointments? It is to irritate the

feelings and sour the minds of the unsuccessful applicants. They make

comparisons between themselves and those who have been successful, and

self-love always exaggerates their own merits and depreciates those of

their successful rivals, to such an extent, that they believe themselves

to have been injured. The President thus often makes one inactive

friend, because he feels himself secure in office, and twenty secret

enemies awaiting the opportunity to give him a stab whenever a favorable

occasion may offer. The Senator greatly overrates the power of executive

influence either among the people or in Congress. By the time the

offices have been all distributed, which is usually done between the

inauguration and the first regular meeting of Congress thereafter, the

President has but few boons to offer.

Again: it is always an odious exercise of executive power to confer

offices on members of Congress, unless under peculiar circumstances,

where the office seeks the man rather than the man the office. In point

of fact, but few members can receive appointments; and those soliciting

them are always detected by their conduct. They are immediately noted

for their subserviency; and from that moment, their influence with their

fellow members is gone.

By far the greatest influence which a President can acquire over

Congress, is a reflected influence from the people upon their

representatives. This is dependent upon the personal popularity of the

President, and can never be powerful, unless, from the force of his

character, and the value of his past services, he has inspired the

people with an enthusiastic attachment. A remarkable example of this

reflected influence was presented in the case of General Jackson; and

yet it is a high compliment to the independence, if not to the wisdom of

Congress, that even he could rarely command a majority in both its

branches. Still it is certain, notwithstanding, that he presented a most

striking example of a powerful executive; and this chiefly because he

was deservedly strong in the affections of the people.

In the vicissitude of human events, we shall sometimes have Presidents

who can, if they please, exercise too much, and those who possess too

little, influence over Congress. If we witnessed the one extreme during

General Jackson’s administration, we now have the other before our eyes.

For the sake of the contrast, and without the slightest disrespect

towards the worthy and amiable individual who now occupies the

Presidential chair, I would say that if General Jackson presented an

example of the strength, the present President presents an equally

striking example of the feebleness, of executive influence. I ask what

has all the patronage of his high office done for him? How many friends

has it secured? I most sincerely wish, for the good of the country, and

for the success of his administration, that he had a much greater degree

of influence in Congress than he possesses. It is for this reason that I

was glad to observe, a few days ago, some symptoms of returning favor on

this (the Whig) side of the house towards John Tyler. It is better, much

better, even thus late, that they should come forward and extend to him

a helping hand, than, wishing to do so, still keep at a distance merely

to preserve an appearance of consistency. I am sorry to see that from

this mere affectation, they should appear so coy, and leave the country

to suffer all the embarrassments which result from a weak

administration. [Here several of the Whig Senators asked jocosely why

the Democrats did not volunteer their services to strengthen the

Government.] Oh! said Mr. B., _we_ cannot do that. What is merely an

apparent inconsistency in the Whigs, would be a real inconsistency in

us. We cannot go for the Whig measures which were approved by President

Tyler at the extra session. We cannot support the great Government

Exchequer Bank of discount and exchange, with its three for one paper

currency. I think, however, with all deference, that my Whig friends on

this side of the House ought not to be squeamish on that subject. I

think my friend from Georgia (Mr. Berrien) ought to go heart and hand

for the Exchequer Bank. It is in substance his own scheme of a “Fiscal

Corporation,” transferred into the Treasury of the United States, and

divested of private stockholders. Let me assure gentlemen that their

character for consistency will not suffer by supporting this measure.

And yet, with the example of this administration before their eyes, the

Whigs dread executive influence so much that they wish to abolish the

veto power, lest the President may be able to draw within its vortex all

the legislative powers of Congress! What a world we live in!

This authentic history is the best answer to another position of the

Senator. Whilst he believes that there have been no encroachments of the

General Government on the rights of the States, but on the contrary that

it is fast sinking into the weakness and imbecility of the

Confederation, he complains of the encroachments which he alleges to

have been made by the President on the legitimate powers of Congress. I

differ from him entirely in both these propositions, and am only sorry

that the subject of the veto power is one so vast that time will not

permit me to discuss them at present. This I shall, however, say, that

the strong tendency of the Federal Government has, in my opinion, ever

been to encroach upon the rights of the States and their people; and I

might appeal to its history to establish the position. Every violent

struggle, threatening the existence of the Union, which has existed in

this country from the beginning, has arisen from the exercise of

constructive and doubtful powers, not by the President, but by Congress.

But enough of this for the present.

The Senator from Kentucky contends that, whether the executive be strong

or weak, Congress must conform its action to his wishes, and if they

cannot obtain what they desire, they must take what they can get. Such a

principle of action is always wrong in itself, and must always lead to

the destruction of the party which adopts it. This was the fatal error

of the Senator and his friends at the extra session. He has informed us

that neither “the Fiscal Bank” nor “the Fiscal Corporation” of that

never to be forgotten session would have received twenty votes in either

House, had the minds of members been left uninfluenced by the expected

action of the Executive.

This was the most severe censure which he could have passed on his party

in Congress. It is now admitted that the Whig party earnestly advocated

and adopted two most important measures, not because they approved them

in the form in which they were presented, but for the sake of

conciliating Mr. Tyler. Never was there a more striking example of

retributive justice than the veto of both these measures. Whether it be

the fact, as the Senator alleges, that the Whigs in Congress took the

Fiscal Corporation bill, letter for letter, as it came from the

President to them, I shall not pretend to decide. It is not for me to

compose such strifes. I leave this to their own file leaders. Without

entering upon this question, I shall never fail, when a fit opportunity

offers, to express the gratitude which I feel, in common with the whole

country, to the President for having vetoed those bills, which it now

appears never received the approbation of any person. It does astonish

me, however, that this proceeding between the President and his party in

Congress should ever have been made an argument in favor of abolishing

the veto power.

This argument, if it prove anything at all, sets the seal of

condemnation to the measures of the late extra session, and to the extra

session itself. It is a demonstration of the hasty, inconsiderate, and

immature legislation of that session. In the flush of party triumph, the

Whigs rushed it, before passion had time to cool down into that calm

deliberation, so essential to the wise and harmonious co-operation of

the different branches of the Government. They took so little time to

consult and to deliberate, to reconcile their conflicting opinions and

interests, and above all to ascertain and fix their real political

principles which they had so sedulously concealed from the public eye

throughout the contest, that none but those who were heated and excited

beyond the bounds of reason ever anticipated any result but division,

disaster, and defeat, from the extra session. The party first pursued a

course which must have inevitably led to the defeat which they have

experienced; and would then revenge themselves for their own misdeeds by

assailing the veto power.

The lesson which we have received will teach Congress hereafter not to

sacrifice its independence by consulting the executive will. Let them

honestly and firmly pass such acts as they believe the public good

requires. They will then have done their duty. Afterwards let the

Executive exercise the same honesty and firmness in approving these

acts. If he vetoes any one of them, he is responsible to the people, and

there he ought to be left.

Had this course been pursued at the extra session, Congress would have

passed an act to establish an old-fashioned Bank of the United States,

which would have been vetoed by the President. A fair issue would thus

have been made for the decision of their common constituents. There

would then have been no necessity for my friends on this side of the

house to submit to the humiliation of justifying themselves before the

people, on the principle that they were willing to accept something

which they knew to be very bad, because they could not obtain that which

they thought the public good demanded.

This whole proceeding, sir, presents no argument against the veto power;

although it does present, in a striking light, the subserviency of the

Whig party in Congress to executive dictation. We may, indeed, if

insensible to our own rights and independence, give an undue influence

to the veto power; but we shall never produce this effect if we confine

ourselves to our own appropriate duties, and leave the Executive to

perform his. This example will never, I think, be imitated by any party

in the country, and we shall then never again be tempted to make war on

the veto power.

To show that this power ought to be abolished, the Senator has referred

to intimations given on this floor, during the administration of General

Jackson, that such and such acts then pending would be vetoed, if

passed. Such intimations may have been in bad taste; but what do they

prove? The Senator does not and cannot say that they ever changed a

single vote. In the instances to which he refers, they were the

declaration of a fact which was known, or might have been known, to the

whole world. A President can only be elected by a majority of the people

of the several States. Throughout the canvass, his opinions and

sentiments on every leading measure of public policy, are known and

discussed. The last election was an exception to this rule; but another

like it will never again occur in our day. If, under such circumstances,

an act should pass Congress, notoriously in violation of some principle

of vital importance, which was decided by the people at his election,

the President would be faithless to the duty which he owed both to them

and himself, if he did not disapprove the measure. Any person might then

declare, in advance, that the President would veto such a bill. Let me

imagine one or two cases which may readily occur. Is it not known from

one end of the Union to the other, and even in every log cabin

throughout its extent, that the Senator from Missouri [Mr. Benton] has

an unconquerable antipathy to a paper currency, and an equally

unconquerable predilection for hard money? Now, if he should be a

candidate for the Presidency,—and much more unlikely events have

happened than that he should be a successful candidate—would not his

election be conclusive evidence that the people were in favor of gold

and silver, and against paper? Under such circumstances, what else could

Congress anticipate whilst concocting an old-fashioned Bank of the

United States, but that he would instantly veto the bill on the day it

was presented to him, without even taking time to sit down in his

Presidential chair? (Great laughter, in which Mr. Benton and Mr. Clay

both joined heartily.) Let me present a reverse case. Suppose the

distinguished Senator from Kentucky should be elected President, would

he hesitate, or, with his opinions, ought he to hesitate, a moment in

vetoing an Independent Treasury bill, should Congress present him such a

measure? And if I, as a member of the Senate, were to assert, in the

first case which I have supposed, whilst the bank bill was pending, that

it would most certainly be vetoed, to what would this amount? Would it

be an attempt to bring executive influence to bear on Congress?

Certainly not. It would only be the mere assertion of a well known fact.

Would it prove anything against the veto power? Certainly not; but

directly the reverse. It would prove that it ought to be exercised—that

the people had willed, by the Presidential election, that it should be

exercised—and that it was one of the very cases which demanded its

exercise.

An anticipation of the exercise of the veto power, in cases which had

already been decided by the people, ought to exercise a restraining

influence over Congress. It should admonish them that they ought not to

place themselves in hostile array against the Executive, and thus

embarrass the administration of the Government by the adoption of a

measure which had been previously condemned by the people. If the

measure be right in itself, the people will, at the subsequent

elections, reverse their own decision, and then, and not till then,

ought Congress to act. No, sir; when we elect a President, we do it in

view of his future course of action, inferred from his known opinions;

and we calculate, with great accuracy, what he will and what he will not

do. The people have never yet been deceived in relation to this matter,

as has been abundantly shown by their approbation of every important

veto since the origin of the Government.

This veto power was conferred upon the President to arrest

unconstitutional, improvident, and hasty legislation. Its intention (if

I may use a word not much according to my taste) was purely

conservative. To adopt the language of the Federalist, “it establishes a

salutary check upon the legislative body, calculated to guard the

community against the effects of faction, precipitancy, or of any

impulse unfriendly to the public good, which may happen to influence a

majority of that body” (Congress). Throughout the whole book, whenever

the occasion offers, a feeling of dread is expressed, lest the

legislative power might transcend the limits prescribed to it by the

Constitution, and ultimately absorb the other powers of the Government.

From first to last, this fear is manifested. We ought never to forget

that the representatives of the people are not the people themselves.

The practical neglect of this distinction has often led to the overthrow

of republican institutions. Eternal vigilance is the price of liberty;

and the people should regard with a jealous eye, not only their

Executive, but their legislative servants. The representative body,

proceeding from the people, and clothed with their confidence, naturally

lulls suspicion to sleep; and, when disposed to betray its trust, can

execute its purpose almost before their constituents take the alarm.

It must have been well founded apprehensions of such a result which

induced Mirabeau to declare, that, without a veto power in the king, who

was no more, under the first constitution of France, than the hereditary

chief executive magistrate of a republic, he would rather live in

Constantinople than in Paris. The catastrophe proved his wisdom; but it

also proved that the veto was no barrier against the encroachment of the

Legislative Assembly; nor would it have saved his own head from the

block, had he not died at the most propitious moment for his fame.

I might appeal to many passages in the history of the world to prove

that the natural tendency of legislative power has always been to

increase itself; and the accumulation of this power has, in many

instances, overthrown republican institutions.

Our system of representative Democracy, Heaven’s last and best political

gift to man, when perverted from its destined purpose, has become the

instrument of the most cruel tyranny which the world has ever witnessed.

Thus it is that the best things, when perverted, become the worst.

Witness the scenes of anarchy, confusion, and blood, from which humanity

and reason equally revolt, which attended the French Revolution, during

the period of the Legislative Assembly and National Convention. So

dreadful were these scenes, all enacted in the name of the people, and

by the people’s own representatives, that they stand out in bold relief,

from all the records of time, and are, by the universal consent of

mankind, denominated “the reign of terror.” Under the government of the

Committee of Public Safety—a committee of the National Convention—more

blood was shed and more atrocities committed, than mankind had ever

beheld within the same space of time. And yet all this was done in the

name of liberty and equality. And what was the result? All this only

paved the way for the usurpation of Napoleon Bonaparte; and the people

sought protection in the arms of despotism from the tyranny and

corruption of their own representatives. This has ever been the course

in which republics have degenerated into military despotisms. Let these

sacred truths be ever kept in mind: that sovereignty belongs to the

people alone, and that all their servants should be watched with the

eyes of sleepless jealousy. The Legislative Assembly and the National

Convention of France had usurped all the powers of the government. They

each, in their turn, constituted the sole representative body of the

nation, and no wise checks and barriers were interposed to moderate and

restrain their action. The example which they presented has convinced

all mankind of the necessity of a senate in a republic; and similar

reasons ought to convince them of the necessity of such a qualified veto

as exists under our Constitution. The people cannot interpose too many

barriers against unwise and wicked legislation, provided they do not

thereby impair the necessary powers of the Government. I know full well

that such scenes as I have just described cannot occur in America; but

still we may learn lessons of wisdom from them to guide our own conduct.

Legislative bodies of any considerable number are more liable to sudden

and violent excitements than individuals. This we have all often

witnessed; and it results from a well known principle of human nature.

In the midst of such excitements, nothing is more natural than hasty,

rash, and dangerous legislation. Individual responsibility is, also,

diminished, in proportion to the increase of the number. Each person,

constituting but a small fractional part of the whole mass, thinks he

can escape responsibility in the midst of the crowd. The restraint of

the popular will upon his conduct is thus greatly diminished, and as one

of a number he is ready to perform acts which he would not attempt upon

his own individual responsibility. In order to check such excesses, the

Federalist tells us that this veto power, or reference of the subject to

the people, was granted.

Again, sir, highly excited political parties may exist in legislative

assemblies, so intent upon grasping or retaining power, that in the

struggle they will forget the wishes and the interests of the people. I

might cite several examples of this kind in the history of our own

legislation; but I merely refer to the odious and unconstitutional alien

and sedition laws. Led on by ambitious and eloquent men who have become

highly excited in the contest, the triumph of party may become paramount

to the good of the country, and unconstitutional and dangerous laws may

be the consequence. The veto power is necessary to arrest such

encroachments on the rights of the States and of the people.

But worst of all is the system of “_log-rolling_,” so prevalent in

Congress and the State legislatures, which the authors of the Federalist

do not seem to have foreseen. This is not a name, to be sure, for ears

polite; yet, though homely, it is so significant of the thing, that I

shall be pardoned for its use. Now, sir, this very system of log-rolling

in legislative bodies is that which has involved several of the States

in debts for internal improvements, which I fear some of them may never

be able to pay. In order to carry improvements which were useful and

might have been productive, it was necessary to attach to them works of

an opposite character. To obtain money to meet these extravagant

expenditures, indulgence was granted to the banks at the expense of the

people. Indeed, it has been a fruitful source of that whole system of

ruinous and disastrous measures against which the Democracy have been

warring for years. It has produced more distress in the country than can

be repaired by industry and economy for many days to come. And yet how

rarely has any Executive had the courage to apply the remedy which the

veto power presents?

Let us, for a moment, examine the workings of this system. It is the

more dangerous, because it presents itself to individual members under

the garb of devotion to their constituents. One has a measure of mere

local advantage to carry, which ought, if at all, to be accomplished by

individual enterprise, and which could not pass if it stood alone. He

finds that he cannot accomplish his object, if he relies only upon its

merits. He finds that other members have other local objects at heart,

none of which would receive the support of a majority if separately

considered. These members, then, form a combination sufficiently

powerful to carry the whole; and thus twenty measures may be adopted,

not one of which separately could have obtained a respectable vote.

Thanks to the wisdom and energy of General Jackson, this system of local

internal improvements which threatened to extend itself into every

neighborhood of the nation, and overspread the land, was arrested by the

veto power. Had not this been done, the General Government might, at the

present day, have been in the same wretched condition with the most

indebted States.

But this system of “log-rolling” has not been confined to mere local

affairs, as the history of the extra session will testify. It was then

adopted in regard to important party objects, and was called the “great

system of measures of the Whig party.” It was openly avowed that the

majority must take the system in mass, although it is well known that

several of the measures, had they stood alone, would have been rejected

in detail. We are all perfectly aware that this was the vital principle

of the extra session. By means of “log-rolling” the system was adopted.

That the passage of the Distribution bill was the price paid for the

Bankrupt bill, was openly avowed on this floor. By what mutual

compensations the other measures were carried we are left to infer, and

therefore I shall not hazard the expression of any opinion in this place

on the subject. The ingredient, which one member could not swallow

alone, went down easily as a component part of the healing dose. And

what has been the consequence? The extravagant appropriations and

enormous expenses of the extra session have beggared the Treasury.

It is to check this system, that the veto power can be most usefully and

properly applied. The President of the United States stands “solitary

and alone,” in his responsibility to the people. In the exercise of this

power, he is emphatically the representative of the whole people. He has

the same feeling of responsibility towards the people at large, which

actuates us towards our immediate constituents. To him the mass of the

people must look as their especial agent; and human ingenuity cannot

devise a better mode of giving them the necessary control than by

enabling him to appeal to themselves in such cases, by means of the veto

power, for the purpose of ascertaining whether they will sanction the

acts of their representatives. He can bring each of those measures

distinctly before the people for their separate consideration, which may

have been adopted by log-rolling as parts of a great system.

The veto power has long been in existence in Pennsylvania, and has been

often exercised, and yet, to my knowledge, it has never been exerted in

any important case, except in obedience to the public will, or in

promotion of the interests of the people. Simon Snyder, whose far-seeing

sagacity detected the evils of our present banking system, whilst they

were yet comparatively in embryo, has rendered himself immortal by his

veto of the forty banks. The system, however, was only arrested, not

destroyed, and we are now suffering the evils. The present governor has

had the wisdom and courage repeatedly to exercise the veto power, and

always, I believe, with public approbation. In a late signal instance,

his veto was overruled, and the law passed by a majority of two-thirds

in both Houses, although I am convinced that at least three-fourths of

the people of the State are opposed to the measure.

In the State of Pennsylvania, we regard the veto power with peculiar

favor. In the convention of 1837, which was held for the purpose of

proposing amendments to our Constitution, the identical proposition now

made by the Senator from Kentucky was brought forward, and was

repudiated by a vote of 103 to 14. This convention was composed of the

ablest and most practical men in the State, and was almost divided

between the two great rival parties of the country; and yet, in that

body, but fourteen individuals could be found who were willing to change

the Constitution in this particular.

Whilst the framers of the Constitution thought, and thought wisely, that

in order to give this power the practical effect they designed, it was

necessary that any bill which was vetoed should be arrested,

notwithstanding a majority of Congress might afterwards approve the

measure; on the other hand, they restrained the power, by conferring on

two-thirds of each House the authority to enact the bill into a law,

notwithstanding the veto of the President. Thus the existence, the

exercise, and the restraint of the power are all harmoniously blended,

and afford a striking example of all the mutual checks and balances of

the Constitution, so admirably adapted to preserve the rights of the

States and of the people.

The last reason to which I shall advert why the veto power was adopted,

and ought to be preserved, I shall state in the language of the

seventy-third number of the Federalist:

“This propensity (says the author) of the legislative department to

intrude upon the rights, and to absorb the powers of the other

departments, has been more than once suggested. The insufficiency of a

mere parchment delineation of the boundaries of each, has also been

remarked upon, and the necessity of furnishing each with constitutional

arms for its own defence, has been inferred and proved. From these clear

and indubitable principles results the propriety of a negative, either

absolute or qualified, in the Executive, upon the acts of the

legislative branches.”

The Executive, which is the weaker branch, in the opinion of the

Federalist, ought not be left at the mercy of Congress, “but ought to

possess a constitutional and effectual power of self-defence.” It ought

to be able to resist encroachments on its constitutional rights.

I admit that no necessity has ever existed to use the veto power for the

protection of the Executive, unless it may possibly have been in a

single instance; and in it there was evidently no intention to invade

his rightful powers. I refer to the “Act to appoint a day for the annual

meeting of Congress.” This act had passed the Senate by a majority of 34

to 8; but when it was returned to this body by General Jackson with his

objections, the majority was reversed, and the vote stood but 16 in

favor to 23 against its passage.

The knowledge of the existence of this veto power, as the framers of the

Constitution foresaw, has doubtless exerted a restraining influence on

Congress. That body have never attempted to invade any of the high

Executive powers. Whilst such attempts have been made by them to violate

the rights of the States and of the people, and have been vetoed, a

sense of justice, as well as the silent restraining influence which

proceeds from a knowledge that the President possesses the means of

self-protection, has relieved him from the necessity of using the veto

for this purpose.

Mr. President, I did not think, at the time of its delivery, that the

speech of the distinguished Senator from Kentucky was one of great

power; though we all know that nothing he can utter is devoid of

eloquence and interest. I mean only to say that I did not then believe

his speech was characterized by his usual ability; and I was disposed to

attribute this to the feeble state of his health and consequent want of

his usual buoyancy of spirit. Since I have seen it in print, I have

changed my opinion; and for the first time in my life I have believed

that a speech of his could appear better and more effective in the

reading than in the delivery. I do not mean to insinuate that anything

was added in the report of it; for I believe it contains all the

arguments used by the Senator and no more; but I was astonished to find,

upon a careful examination, that every possible argument had been urged

which could be used in a cause so hopeless. This is my apology for

having detained the Senate so long in attempting to answer it.

[Mr. Clay observed that he never saw the speech, as written out by the

reporter, till he read it in print the next morning; and, although he

found some errors and misconceptions, yet, on the whole, it was very

correct, and, as well as he could recollect, contained all the arguments

he did make use of, and no more.]

Mr. Buchanan. I did not intend, as must have been evident to the

Senator, to produce the impression that anything had been added. My only

purpose was to say that it was a better speech than I had supposed, and

thus to apologize to the Senate for the time I had consumed in answering

it.

I shall briefly refer to two other arguments urged by the Senator, and

shall then take my seat. Why, says he, should the President possess the

veto power for his protection, whilst it is not accorded to the

judiciary? The answer is very easy. It is true that this power has not

been granted to the judiciary in form; but they possess it in fact to a

much greater extent than the President. The Chief Justice of the United

States and his associates, sitting in the gloomy chamber beneath,

exercise the tremendous and irresponsible power of saying to all the

departments of the Government, “hitherto shalt thou go, and no further.”

They exercise the prerogative of annulling laws passed by Congress, and

approved by the President, whenever in their opinion, the legislative

authority has transcended its constitutional limits. Is not this a

self-protecting power, much more formidable than the veto of the

President? Two-thirds of Congress may overrule the Executive veto; but

the whole of Congress and the President united, cannot overrule the

decisions of the Supreme Court. Theirs is a veto on the action of the

whole Government. I do not say that this power, formidable as it may be,

ought not to exist: on the contrary, I consider it to be one of the wise

checks which the framers of the Constitution have provided against hasty

and unconstitutional legislation, and is a part of the great system of

mutual restraints which the people have imposed on their servants for

their own protection. This, however, I will say, and that with the most

sincere respect for the individual judges; that in my own opinion, the

whole train of their decisions from the beginning favors the power of

the General Government at the expense of State rights and State

sovereignty. Where, I ask, is the case to be found upon their records,

in which they have ever decided that any act of Congress, from the alien

and sedition laws until the present day, was unconstitutional, provided

it extended the powers of the Federal Government? Truly they are

abundantly able to protect their own rights and jurisdiction against

either Congress or the Executive, or both united.

Again: the Senator asks, why has not the veto been given to the

President on the acts of conventions held for the purpose of amending

our Constitutions? If it be necessary to restrain Congress, it is

equally necessary, says he, to restrain conventions. The answer to this

argument is equally easy. It would be absurd to grant an appeal, through

the intervention of a veto, to the people themselves, against their own

acts. They create conventions by virtue of their own undelegated and

inalienable sovereignty; and when they speak, their servants, whether

legislative, executive, or judicial, must be silent. Besides, when they

proceed to exercise their sovereign power in changing the forms of their

Government, they are peculiarly careful in the selection of their

delegates—they watch over the proceedings with vigilant care, and the

Constitution proposed, by such a convention, is never adopted until

after it has been submitted to the vote of the people. It is a mere

proposition to the people themselves, and leaves no room for the action

of the veto power.

[Here Mr. Clay observed, that Constitutions, thus formed, were not

afterwards submitted to the people.]

Mr. Buchanan. For many years past, I believe that this has always been

done, as it always ought to be done, in the States: and the Federal

Constitution was not adopted until after it had been submitted to a

convention of the people of every State in the Union.

So much in regard to the States. The Senator’s argument has no

application whatever to the Federal Constitution, which has provided the

mode of its own amendment. It requires two-thirds of both Houses, the

very majority required to overrule a Presidential veto, even to propose

any amendment; and before such an amendment can be adopted, it must be

ratified by the legislatures, or by conventions, in three-fourths of the

several States. To state this proposition, is to manifest the absurdity,

nay, the impossibility of applying the veto power of the President to

amendments, which have thus been previously ratified by such an

overwhelming expression of the public will. This Constitution of ours,

with all its checks and balances, is a wonderful invention of human

wisdom. Founded upon the most just philosophical principles, and the

deepest knowledge of the nature of man, it produces harmony, happiness,

and order, from elements which, to the superficial observer, might

appear to be discordant.

On the whole, I trust not only that this veto power may not be

destroyed, but that the vote on the Senator’s amendment may be of such a

character as to settle the question, at least during the present

generation. Sir, of all the executive powers, it is the one least to be

dreaded. It cannot create; it can originate no measure; it can change no

existing law; it can destroy no existing institution. It is a mere power

to arrest hasty and inconsiderate changes, until the voice of the

people, who are alike the masters of Senators, Representatives and

President, shall be heard. When it speaks, we must all bow with

deference to the decree. Public opinion is irresistible in this country.

It will accomplish its purpose by the removal of Senators,

Representatives, or President, who may stand in its way. The President

might as well attempt to stay the tides of the ocean by erecting mounds

of sand, as to think of controlling the will of the people by the veto

power. The mounting waves of popular opinion would soon prostrate such a

feeble barrier. The veto power is everything when sustained by public

opinion; but nothing without it.

What is this Constitution under which we live, and what are we? Are we

not the most prosperous, the most free, and amongst the most powerful

nations on the face of the earth? Have we not attained this

pre-eminence, in a period brief beyond any example recorded in history,

under the benign influence of this Constitution, and the laws which have

been passed under its authority? Why, then, should we, with rude hands,

tear away one of the cords from this wisely balanced instrument, and

thus incur the danger of impairing or destroying the harmony and

vigorous action of the whole? The Senator from Kentucky has not, in my

opinion, furnished us with any sufficient reasons.

And after all, what harm can this veto power ever do? It can never delay

the passage of a great public measure, demanded by the people, more than

two, or at the most, four years. Is it not better, then, to submit to

this possible inconvenience, (for it has never yet occurred,) than to

destroy the power altogether? It is not probable that it ever will

occur; because if the President should disregard the will of the people

on any important constitutional measure which they desired, he would

sign his own political death warrant. No President will ever knowingly

attempt to do it; and his means of knowledge, from the ordeal through

which he must have passed previous to his election, are superior to

those of any other individual. He will never, unless in cases scarcely

to be imagined, resist the public will when fairly expressed. It is

beyond the nature of things to believe otherwise. The veto power is that

feature of our Constitution which is most conservative of the rights of

the States and the rights of the people. May it be perpetual!