A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 11TH OF
JULY, 1832, ON THE PRESIDENT'S VETO OF THE BANK BILL.
Mr. President,--No one will deny the high importance of the subject now
before us. Congress, after full deliberation and discussion, has passed
a bill, by decisive majorities, in both houses, for extending the
duration of the Bank of the United States. It has not adopted this
measure until its attention had been called to the subject, in three
successive annual messages of the President. The bill having been thus
passed by both houses, and having been duly presented to the President,
instead of signing and approving it, he has returned it with objections.
These objections go against the whole substance of the law originally
creating the bank. They deny, in effect, that the bank is
constitutional; they deny that it is expedient; they deny that it is
necessary for the public service.
It is not to be doubted, that the Constitution gives the President the
power which he has now exercised; but while the power is admitted, the
grounds upon which it has been exerted become fit subjects of
examination. The Constitution makes it the duty of Congress, in cases
like this, to reconsider the measure which they have passed, to weigh
the force of the President's objections to that measure, and to take a
new vote upon the question.
Before the Senate proceeds to this second vote, I propose to make some
remarks upon those objections. And, in the first place, it is to be
observed, that they are such as to extinguish all hope that the present
bank, or any bank at all resembling it, or resembling any known similar
institution, can ever receive his approbation. He states no terms, no
qualifications, no conditions, no modifications, which can reconcile him
to the essential provisions of the existing charter. He is against the
bank, and against any bank constituted in a manner known either to this
or any other country. One advantage, therefore, is certainly obtained by
presenting him the bill. It has caused the President's sentiments to be
made known. There is no longer any mystery, no longer a contest between
hope and fear, or between those prophets who predicted a _veto_ and
those who foretold an approval. The bill is negatived; the President has
assumed the responsibility of putting an end to the bank; and the
country must prepare itself to meet that change in its concerns which
the expiration of the charter will produce. Mr. President, I will not
conceal my opinion that the affairs of the country are approaching an
important and dangerous crisis. At the very moment of almost
unparalleled general prosperity, there appears an unaccountable
disposition to destroy the most useful and most approved institutions of
the government. Indeed, it seems to be in the midst of all this national
happiness that some are found openly to question the advantages of the
Constitution itself and many more ready to embarrass the exercise of its
just power, weaken its authority, and undermine its foundations. How
far these notions may be carried, it is impossible yet to say. We have
before us the practical result of one of them. The bank has fallen, or
is to fall.
It is now certain, that, without a change in our public counsels, this
bank will not be continued, nor will any other be established, which,
according to the general sense and language of mankind, can be entitled
to the name. Within three years and nine months from the present moment,
the charter of the bank expires; within that period, therefore, it must
wind up its concerns. It must call in its debts, withdraw its bills from
circulation, and cease from all its ordinary operations. All this is to
be done in three years and nine months; because, although there is a
provision in the charter rendering it lawful to use the corporate name
for two years after the expiration of the charter, yet this is allowed
only for the purpose of suits and for the sale of the estate belonging
to the bank, and for no other purpose whatever. The whole active
business of the bank, its custody of public deposits, its transfer of
public moneys, its dealing in exchange, all its loans and discounts, and
all its issues of bills for circulation, must cease and determine on or
before the third day of March, 1836; and within the same period its
debts must be collected, as no new contract can be made with it, as a
corporation, for the renewal of loans, or discount of notes or bills,
after that time.
The President is of opinion, that this time is long enough to close the
concerns of the institution without inconvenience. His language is, "The
time allowed the bank to close its concerns is ample, and if it has been
well managed, its pressure will be light, and heavy only in case its
management has been bad. If, therefore, it shall produce distress, the
fault will be its own." Sir, this is all no more than general statement,
without fact or argument to support it. We know what the management of
the bank has been, and we know the present state of its affairs. We can
judge, therefore, whether it be probable that its capital can be all
called in, and the circulation of its bills withdrawn, in three years
and nine months, by any discretion or prudence in management, without
producing distress. The bank has discounted liberally, in compliance
with the wants of the community. The amount due to it on loans and
discounts, in certain large divisions of the country, is great; so
great, that I do not perceive how any man can believe that it can be
paid, within the time now limited, without distress. Let us look at
known facts. Thirty millions of the capital of the bank are now out, on
loans and discounts, in the States on the Mississippi and its waters;
ten millions of which are loaned on the discount of bills of exchange,
foreign and domestic, and twenty millions on promissory notes. Now, Sir,
how is it possible that this vast amount can be collected in so short a
period without suffering, by any management whatever? We are to
remember, that, when the collection of this debt begins, at that same
time the existing medium of payment, that is, the circulation of the
bills of the bank, will begin also to be restrained and withdrawn; and
thus the means of payment must be limited just when the necessity of
making payment becomes pressing. The whole debt is to be paid, and
within the same time the whole circulation withdrawn.
The local banks, where there are such, will be able to afford little
assistance; because they themselves will feel a full share of the
pressure. They will not be in a condition to extend their discounts,
but, in all probability, obliged to curtail them. Whence, then, are the
means to come for paying this debt? and in what medium is payment to be
made? If all this may be done with but slight pressure on the community,
what course of conduct is to accomplish it? How is it to be done? What
other thirty millions are to supply the place of these thirty millions
now to be called in? What other circulation or medium of payment is to
be adopted in the place of the bills of the bank? The message, following
a singular train of argument, which had been used in this house, has a
loud lamentation upon the suffering of the Western States on account of
their being obliged to pay even interest on this debt. This payment of
interest is itself represented as exhausting their means and ruinous to
their prosperity. But if the interest cannot be paid without pressure,
can both interest and principal be paid in four years without pressure?
The truth is, the interest has been paid, is paid, and may continue to
be paid, without any pressure at all; because the money borrowed is
profitably employed by those who borrow it, and the rate of interest
which they pay is at least two per cent lower than the actual value of
money in that part of the country. But to pay the whole principal in
less than four years, losing, at the same time, the existing and
accustomed means and facilities of payment created by the bank itself,
and to do this without extreme embarrassment, without absolute distress,
is, in my judgment, impossible. I hesitate not to say, that, as this
_veto_ travels to the West, it will depreciate the value of every man's
property from the Atlantic States to the capital of Missouri. Its
effects will be felt in the price of lands, the great and leading
article of Western property, in the price of crops, in the products of
labor, in the repression of enterprise, and in embarrassment to every
kind of business and occupation. I state this opinion strongly, because
I have no doubt of its truth, and am willing its correctness should be
judged by the event. Without personal acquaintance with the Western
States, I know enough of their condition to be satisfied that what I
have predicted must happen. The people of the West are rich, but their
riches consist in their immense quantities of excellent land, in the
products of these lands, and in their spirit of enterprise. The actual
value of money, or rate of interest, with them is high, because their
pecuniary capital bears little proportion to their landed interest. At
an average rate, money is not worth less than eight per cent per annum
throughout the whole Western country, notwithstanding that it has now a
loan or an advance from the bank of thirty millions, at six per cent. To
call in this loan, at the rate of eight millions a year, in addition to
the interest on the whole, and to take away, at the same time, that
circulation which constitutes so great a portion of the medium of
payment throughout that whole region, is an operation, which, however
wisely conducted, cannot but inflict a blow on the community of
tremendous force and frightful consequences. The thing cannot be done
without distress, bankruptcy, and ruin, to many. If the President had
seen any practical manner in which this change might be effected without
producing these consequences, he would have rendered infinite service to
the community by pointing it out. But he has pointed out nothing, he has
suggested nothing; he contents himself with saying, without giving any
reason, that, if the pressure be heavy, the fault will be the bank's. I
hope this is not merely an attempt to forestall opinion, and to throw on
the bank the responsibility of those evils which threaten the country,
for the sake of removing it from himself.
The responsibility justly lies with him, and there it ought to remain. A
great majority of the people are satisfied with the bank as it is, and
desirous that it should be continued. They wished no change. The
strength of this public sentiment has carried the bill through Congress,
against all the influence of the administration, and all the power of
organized party. But the President has undertaken, on his own
responsibility, to arrest the measure, by refusing his assent to the
bill. He is answerable for the consequences, therefore, which
necessarily follow the change which the expiration of the bank charter
may produce; and if these consequences shall prove disastrous, they can
fairly be ascribed to his policy only, and the policy of his
administration.
Although, Sir, I have spoken of the effects of this _veto_ in the
Western country, it has not been because I considered that part of the
United States exclusively affected by it. Some of the Atlantic States
may feel its consequences, perhaps, as sensibly as those of the West,
though not for the same reasons. The concern manifested by Pennsylvania
for the renewal of the charter shows her sense of the importance of the
bank to her own interest, and that of the nation. That great and
enterprising State has entered into an extensive system of internal
improvements, which necessarily makes heavy demands on her credit and
her resources; and by the sound and acceptable currency which the bank
affords, by the stability which it gives to private credit, and by
occasional advances, made in anticipation of her revenues, and in aid of
her great objects, she has found herself benefited, doubtless, in no
inconsiderable degree. Her legislature has instructed her Senators here
to advocate the renewal of the charter, at this session. They have
obeyed her voice, and yet they have the misfortune to find that, in the
judgment of the President, _the measure is unconstitutional,
unnecessary, dangerous to liberty, and is, moreover, ill-timed_.
But, Mr. President, it is not the local interest of the West, nor the
particular interest of Pennsylvania, or any other State, which has
influenced Congress in passing this bill. It has been governed by a wise
foresight, and by a desire to avoid embarrassment in the pecuniary
concerns of the country, to secure the safe collection and convenient
transmission of public moneys, to maintain the circulation of the
country, sound and safe as it now happily is, against the possible
effects of a wild spirit of speculation. Finding the bank highly useful,
Congress has thought fit to provide for its continuance.
As to the _time_ of passing this bill, it would seem to be the last
thing to be thought of, as a ground of objection, by the President;
since, from the date of his first message to the present time, he has
never failed to call our attention to the subject with all possible
apparent earnestness. So early as December, 1829, in his message to the
two houses, he declares, that he "cannot, in justice to the parties
interested, too soon present the subject to the deliberate consideration
of the legislature, in order to avoid the evils resulting from
precipitancy, in a measure involving such important principles and such
deep pecuniary interests." Aware of this early invitation given to
Congress to take up the subject, by the President himself, the writer of
the message seems to vary the ground of objection, and, instead of
complaining that the time of bringing forward this measure was
premature, to insist, rather, that, after the report of the committee of
the other house, the bank should have withdrawn its application for the
present! But that report offers no just ground, surely, for such
withdrawal. The subject was before Congress; it was for Congress to
decide upon it, with all the light shed by the report; and the question
of postponement, having been made in both houses, was lost, by clear
majorities, in each. Under such circumstances, it would have been
somewhat singular, to say the least, if the bank itself had withdrawn
its application. It is indeed known to everybody, that neither the
report of the committee, nor any thing contained in that report, was
relied on by the opposers of the renewal. If it has been discovered
elsewhere, that that report contained matter important in itself, or
which should have led to further inquiry, this may be proof of superior
sagacity; for certainly no such thing was discerned by either house of
Congress.
But, Sir, do we not now see that it was time, and high time, to press
this bill, and to send it to the President? Does not the event teach us,
that the measure was not brought forward one moment too early? The time
had come when the people wished to know the decision of the
administration on the question of the bank? Why conceal it, or postpone
its declaration? Why, as in regard to the tariff, give out one set of
opinions for the North, and another for the South?
An important election is at hand, and the renewal of the bank charter is
a pending object of great interest, and some excitement. Should not the
opinions of men high in office, and candidates for re-election, be
known on this, as on other important public questions? Certainly, it is
to be hoped that the people of the United States are not yet mere
man-worshippers, that they do not choose their rulers without some
regard to their political principles, or political opinions. Were they
to do this, it would be to subject themselves voluntarily to the evils
which the hereditary transmission of power, independent of all personal
qualifications, inflicts on other nations. They will judge their public
servants by their acts, and continue or withhold their confidence, as
they shall think it merited, or as they shall think it forfeited. In
every point of view, therefore, the moment had arrived, when it became
the duty of Congress to come to a result, in regard to this highly
important measure. The interests of the government, the interests of the
people, the clear and indisputable voice of public opinion, all called
upon Congress to act without further loss of time. It has acted, and its
act has been negatived by the President; and this result of the
proceedings here places the question, with all its connections and all
its incidents, fully before the people.
Before proceeding to the constitutional question, there are some other
topics, treated in the message, which ought to be noticed. It commences
by an inflamed statement of what it calls the "favor" bestowed upon the
original bank by the government, or, indeed, as it is phrased, the
"monopoly of its favor and support"; and through the whole message all
possible changes are rung on the "gratuity," the "exclusive privileges,"
and "monopoly," of the bank charter. Now, Sir, the truth is, that the
powers conferred on the bank are such, and no others, as are usually
conferred on similar institutions. They constitute no monopoly, although
some of them are of necessity, and with propriety, exclusive privileges.
"The original act," says the message, "operated as a gratuity of many
millions to the stockholders." What fair foundation is there for this
remark? The stockholders received their charter, not gratuitously, but
for a valuable consideration in money, prescribed by Congress, and
actually paid. At some times the stock has been above _par_, at other
times below _par_, according to prudence in management, or according to
commercial occurrences. But if, by a judicious administration of its
affairs, it had kept its stock always above _par_, what pretence would
there be, nevertheless, for saying that such augmentation of its value
was a "gratuity" from government? The message proceeds to declare, that
the present act proposes another donation, another gratuity, to the same
men, of at least seven millions more. It seems to me that this is an
extraordinary statement, and an extraordinary style of argument, for
such a subject and on such an occasion. In the first place, the facts
are all assumed; they are taken for true without evidence. There are no
proofs that any benefit to that amount will accrue to the stockholders,
nor any experience to justify the expectation of it. It rests on random
estimates, or mere conjecture. But suppose the continuance of the
charter should prove beneficial to the stockholders; do they not pay for
it? They give twice as much for a charter of fifteen years, as was given
before for one of twenty. And if the proposed _bonus_, or premium, be
not, in the President's judgment, large enough, would he, nevertheless,
on such a mere matter of opinion as that, negative the whole bill? May
not Congress be trusted to decide even on such a subject as the amount
of the money premium to be received by government for a charter of this
kind?
But, Sir, there is a larger and a much more just view of this subject.
The bill was not passed for the purpose of benefiting the present
stockholders. Their benefit, if any, is incidental and collateral. Nor
was it passed on any idea that they had a _right_ to a renewed charter,
although the message argues against such right, as if it had been
somewhere set up and asserted. No such right has been asserted by
anybody. Congress passed the bill, not as a bounty or a favor to the
present stockholders, nor to comply with any demand of right on their
part; but to promote great public interests, for great public objects.
Every bank must have some stockholders, unless it be such a bank as the
President has recommended, and in regard to which he seems not likely to
find much concurrence of other men's opinions; and if the stockholders,
whoever they may be, conduct the affairs of the bank prudently, the
expectation is always, of course, that they will make it profitable to
themselves, as well as useful to the public. If a bank charter is not to
be granted, because, to some extent, it may be profitable to the
stockholders, no charter can be granted. The objection lies against all
banks.
Sir, the object aimed at by such institutions is to connect the public
safety and convenience with private interests. It has been found by
experience, that banks are safest under private management, and that
government banks are among the most dangerous of all inventions. Now,
Sir, the whole drift of the message is to reverse the settled judgment
of all the civilized world, and to set up government banks, independent
of private interest or private control. For this purpose the message
labors, even beyond the measure of all its other labors, to create
jealousies and prejudices, on the ground of the alleged benefit which
individuals will derive from the renewal of this charter. Much less
effort is made to show that government, or the public, will be injured
by the bill, than that individuals will profit by it. Following up the
impulses of the same spirit, the message goes on gravely to allege, that
the act, as passed by Congress, proposes to make a _present_ of some
millions of dollars to foreigners, because a portion of the stock is
held by foreigners. Sir, how would this sort of argument apply to other
cases? The President has shown himself not only willing, but anxious, to
pay off the three per cent stock of the United States at _par_,
notwithstanding that it is notorious that foreigners are owners of the
greater part of it. Why should he not call that a donation to foreigners
of many millions?
I will not dwell particularly on this part of the message. Its tone and
its arguments are all in the same strain. It speaks of the certain gain
of the present stockholders, of the value of the monopoly; it says that
all monopolies are granted at the expense of the public; that the many
millions which this bill bestows on the stockholders come out of the
earnings of the people; that, if government sells monopolies, it ought
to sell them in open market; that it is an erroneous idea, that the
present stockholders have a prescriptive right either to the favor or
the bounty of government; that the stock is in the hands of a few, and
that the whole American people are excluded from competition in the
purchase of the monopoly. To all this I say, again, that much of it is
assumption without proof; much of it is an argument against that which
nobody has maintained or asserted; and the rest of it would be equally
strong against any charter, at any time. These objections existed in
their full strength, whatever that was, against the first bank. They
existed, in like manner, against the present bank at its creation, and
will always exist against all banks. Indeed, all the fault found with
the bill now before us is, that it proposes to continue the bank
substantially as it now exists. "All the objectionable principles of the
existing corporation," says the message, "and most of its odious
features, are retained without alleviation"; so that the message is
aimed against the bank, as it has existed from the first, and against
any and all others resembling it in its general features.
Allow me, now, Sir, to take notice of an argument founded on the
practical operation of the bank. That argument is this. Little of the
stock of the bank is held in the West, the capital being chiefly owned
by citizens of the Southern and Eastern States, and by foreigners. But
the Western and Southwestern States owe the bank a heavy debt, so heavy
that the interest amounts to a million six hundred thousand a year. This
interest is carried to the Eastern States, or to Europe, annually, and
its payment is a burden on the people of the West, and a drain of their
currency, which no country can bear without inconvenience and distress.
The true character and the whole value of this argument are manifest by
the mere statement of it. The people of the West are, from their
situation, necessarily large borrowers. They need money, capital, and
they borrow it, because they can derive a benefit from its use, much
beyond the interest which they pay. They borrow at six per cent of the
bank, although the value of money with them is at least as high as
eight. Nevertheless, although they borrow at this low rate of interest,
and although they use all they borrow thus profitably, yet they cannot
pay the interest without "inconvenience and distress"; and then, Sir,
follows the logical conclusion, that, although they cannot pay even the
interest without inconvenience and distress, yet less than four years is
ample time for the bank to call in the whole, both principal and
interest, without causing more than a light pressure. This is the
argument.
Then follows another, which may be thus stated. It is competent to the
States to tax the property of their citizens vested in the stock of this
bank; but the power is denied of taxing the stock of foreigners;
therefore the stock will be worth ten or fifteen per cent more to
foreigners than to residents, and will of course inevitably leave the
country, and make the American people debtors to aliens in nearly the
whole amount due the bank, and send across the Atlantic from two to five
millions of specie every year, to pay the bank dividends.
Mr. President, arguments like these might be more readily disposed of,
were it not that the high and official source from which they proceed
imposes the necessity of treating them with respect. In the first place,
it may safely be denied that the stock of the bank is any more valuable
to foreigners than to our own citizens, or an object of greater desire
to them, except in so far as capital may be more abundant in the foreign
country, and therefore its owners more in want of opportunity of
investment. The foreign stockholder enjoys no exemption from taxation.
He is, of course, taxed by his own government for his incomes, derived
from this as well as other property; and this is a full answer to the
whole statement. But it may be added, in the second place, that it is
not the practice of civilized states to tax the property of foreigners
under such circumstances. Do we tax, or did we ever tax, the foreign
holders of our public debt? Does Pennsylvania, New York, or Ohio tax the
foreign holders of stock in the loans contracted by either of these
States? Certainly not. Sir, I must confess I had little expected to see,
on such an occasion as the present, a labored and repeated attempt to
produce an impression on the public opinion unfavorable to the bank,
from the circumstance that foreigners are among its stockholders. I have
no hesitation in saying, that I deem such a train of remark as the
message contains on this point, coming from the President of the United
States, to be injurious to the credit and character of the country
abroad; because it manifests a jealousy, a lurking disposition not to
respect the property, of foreigners invited hither by our own laws. And,
Sir, what is its tendency but to excite this jealousy, and create
groundless prejudices?
From the commencement of the government, it has been thought desirable
to invite, rather than to repel, the introduction of foreign capital.
Our stocks have all been open to foreign subscriptions; and the State
banks, in like manner, are free to foreign ownership. Whatever State has
created a debt has been willing that foreigners should become
purchasers, and desirous of it. How long is it, Sir, since Congress
itself passed a law vesting new powers in the President of the United
States over the cities in this District, for the very purpose of
increasing their credit abroad, the better to enable them to borrow
money to pay their subscriptions to the Chesapeake and Ohio Canal? It is
easy to say that there is danger to liberty, danger to independence, in
a bank open to foreign stockholders, because it is easy to say any
thing. But neither reason nor experience proves any such danger. The
foreign stockholder cannot be a director. He has no voice even in the
choice of directors. His money is placed entirely in the management of
the directors appointed by the President and Senate and by the American
stockholders. So far as there is dependence or influence either way, it
is to the disadvantage of the foreign stockholder. He has parted with
the control over his own property, instead of exercising control over
the property or over the actions of others. And, Sir, let it now be
added, in further answer to this class of objections, that experience
has abundantly confuted them all. This government has existed
forty-three years, and has maintained, in full being and operation, a
bank, such as is now proposed to be renewed, for thirty-six years out of
the forty-three. We have never for a moment had a bank not subject to
every one of these objections. Always, foreigners might be stockholders;
always, foreign stock has been exempt from State taxation, as much as at
present; always, the same power and privileges; always, all that which
is now called a "monopoly," a "gratuity," a "present," have been
possessed by the bank. And yet there has been found no danger to
liberty, no introduction of foreign influence, and no accumulation of
irresponsible power in a few hands. I cannot but hope, therefore, that
the people of the United States will not now yield up their judgment to
those notions which would reverse all our best experience, and persuade
us to discontinue a useful institution from the influence of vague and
unfounded declamation against its danger to the public liberties. Our
liberties, indeed, must stand upon very frail foundations, if the
government cannot, without endangering them, avail itself of those
common facilities, in the collection of its revenues and the management
of its finances, which all other governments, in commercial countries,
find useful and necessary.
In order to justify its alarm for the security of our independence, the
message supposes a case. It supposes that the bank should pass
principally into the hands of the subjects of a foreign country, and
that we should be involved in war with that country, and then it
exclaims, "What would be our condition?" Why, Sir, it is plain that all
the advantages would be on our side. The bank would still be our
institution, subject to our own laws, and all its directors elected by
ourselves; and our means would be enhanced, not by the confiscation and
plunder, but by the proper use, of the foreign capital in our hands.
And, Sir, it is singular enough that this very state of war, from which
this argument against a bank is drawn, is the very thing which, more
than all others, convinced the country and the government of the
necessity of a national bank. So much was the want of such an
institution felt in the late war, that the subject engaged the attention
of Congress, constantly, from the declaration of that war down to the
time when the existing bank was actually established; so that in this
respect, as well as in others, the argument of the message is directly
opposed to the whole experience of the government, and to the general
and long-settled convictions of the country.
I now proceed, Sir, to a few remarks upon the President's constitutional
objections to the bank; and I cannot forbear to say, in regard to them,
that he appears to me to have assumed very extraordinary grounds of
reasoning. He denies that the constitutionality of the bank is a settled
question. If it be not, will it ever become so, or what disputed
question ever can be settled? I have already observed, that for
thirty-six years out of the forty-three during which the government has
been in being, a bank has existed, such as is now proposed to be
continued.
As early as 1791, after great deliberation, the first bank charter was
passed by Congress, and approved by President Washington. It established
an institution, resembling, in all things now objected to, the present
bank. That bank, like this, could take lands in payment of its debts;
that charter, like the present, gave the States no power of taxation; it
allowed foreigners to hold stock; it restrained Congress from creating
other banks. It gave also exclusive privileges, and in all particulars
it was, according to the doctrine of the message, as objectionable as
that now existing. That bank continued twenty years. In 1816, the
present institution was established, and has been ever since in full
operation. Now, Sir, the question of the power of Congress to create
such institutions has been contested in every manner known to our
Constitution and laws. The forms of the government furnish no new mode
in which to try this question. It has been discussed over and over
again, in Congress; it has been argued and solemnly adjudged in the
Supreme Court; every President, except the present, has considered it a
settled question; many of the State legislatures have instructed their
Senators to vote for the bank; the tribunals of the States, in every
instance, have supported its constitutionality; and, beyond all doubt
and dispute, the general public opinion of the country has at all times
given, and does now give, its full sanction and approbation to the
exercise of this power, as being a constitutional power. There has been
no opinion questioning the power expressed or intimated, at any time, by
either house of Congress, by any President, or by any respectable
judicial tribunal. Now, Sir, if this practice of near forty years, if
these repeated exercises of the power, if this solemn adjudication of
the Supreme Court, with the concurrence and approbation of public
opinion, do not settle the question, how is any question ever to be
settled, about which any one may choose to raise a doubt?
The argument of the message upon the Congressional precedents is either
a bold and gross fallacy, or else it is an assertion without proofs, and
against known facts. The message admits, that, in 1791, Congress decided
in favor of a bank; but it adds, that another Congress, in 1811, decided
against it. Now, if it be meant that, in 1811, Congress decided against
the bank on constitutional ground, then the assertion is wholly
incorrect, and against notorious fact. It is perfectly well known, that
many members, in both houses, voted against the bank in 1811, who had no
doubt at all of the constitutional power of Congress. They were entirely
governed by other reasons given at the time. I appeal, Sir, to the
honorable member from Maryland, who was then a member of the Senate, and
voted against the bank, whether he, and others who were on the same
side, did not give those votes on other well-known grounds, and not at
all on constitutional ground?
General Smith here rose, and said, that he voted against the bank
in 1811, but not at all on constitutional grounds, and had no doubt
such was the case with other members.
We all know, Sir, the fact to be as the gentleman from Maryland has
stated it. Every man who recollects, or who has read, the political
occurrences of that day, knows it. Therefore, if the message intends to
say, that in 1811 Congress denied the existence of any such
constitutional power, the declaration is unwarranted, and altogether at
variance with the facts. If, on the other hand, it only intends to say,
that Congress decided against the proposition then before it on some
other grounds, then it alleges that which is nothing at all to the
purpose. The argument, then, either assumes for truth that which is not
true, or else the whole statement is immaterial and futile.
But whatever value others may attach to this argument, the message
thinks so highly of it, that it proceeds to repeat it. "One Congress,"
it says, "in 1815, decided against a bank, another, in 1816, decided in
its favor. There is nothing in precedent, therefore, which, if its
authority were admitted, ought to weigh in favor of the act before me."
Now, Sir, since it is known to the whole country, one cannot but wonder
how it should remain unknown to the President, that Congress _did not_
decide against a bank in 1815. On the contrary, that very Congress
passed a bill for erecting a bank, by very large majorities. In one
form, it is true, the bill failed in the House of Representatives; but
the vote was reconsidered, the bill recommitted, and finally passed by a
vote of one hundred and twenty to thirty-nine. There is, therefore, not
only no solid ground, but not even any plausible pretence, for the
assertion, that Congress in 1815 decided against the bank. That very
Congress passed a bill to create a bank, and its decision, therefore, is
precisely the other way, and is a direct practical precedent in favor of
the constitutional power. What are we to think of a constitutional
argument which deals in this way with historical facts? When the message
declares, as it does declare, that there is nothing in precedent which
ought to weigh in favor of the power, it sets at naught repeated acts of
Congress affirming the power, and it also states other acts, which were
in fact, and which are well known to have been, directly the reverse of
what the message represents them. There is not, Sir, the slightest
reason to think that any Senate or any House of Representatives, ever
assembled under the Constitution, contained a majority that doubted the
constitutional existence of the power of Congress to establish a bank.
Whenever the question has arisen, and has been decided, it has always
been decided one way. The legislative precedents all assert and maintain
the power; and these legislative precedents have been the law of the
land for almost forty years. They settle the construction of the
Constitution, and sanction the exercise of the power in question, so far
as these effects can ever be produced by any legislative precedents
whatever.
But the President does not admit the authority of precedent. Sir, I have
always found, that those who habitually deny most vehemently the general
force of precedent, and assert most strongly the supremacy of private
opinion, are yet, of all men, most tenacious of that very authority of
precedent, whenever it happens to be in their favor. I beg leave to ask,
Sir, upon what ground, except that of precedent, and precedent alone,
the President's friends have placed his power of removal from office. No
such power is given by the Constitution, in terms, nor anywhere
intimated, throughout the whole of it; no paragraph or clause of that
instrument recognizes such a power. To say the least, it is as
questionable, and has been as often questioned, as the power of Congress
to create a bank; and, enlightened by what has passed under our own
observation, we now see that it is of all powers the most capable of
flagrant abuse. Now, Sir, I ask again, What becomes of this power, if
the authority of precedent be taken away? It has all along been denied
to exist; it is nowhere found in the Constitution; and its recent
exercise, or, to call things by their right names, its recent abuse,
has, more than any other single cause, rendered good men either cool in
their affections toward the government of their country, or doubtful of
its long continuance. Yet there is _precedent_ in favor of this power,
and the President exercises it. We know, Sir, that, without the aid of
that _precedent_, his acts could never have received the sanction of
this body, even at a time when his voice was somewhat more potential
here than it now is, or, as I trust, ever again will be. Does the
President, then, reject the authority of all precedent except what it is
suitable to his own purpose to use? And does he use, without stint or
measure, all precedents which may augment his own power, or gratify his
own wishes?
But if the President thinks lightly of the authority of Congress in
construing the Constitution, he thinks still more lightly of the
authority of the Supreme Court. He asserts a right of individual
judgment on constitutional questions, which is totally inconsistent with
any proper administration of the government, or any regular execution of
the laws. Social disorder, entire uncertainty in regard to individual
rights and individual duties, the cessation of legal anthority,
confusion, the dissolution of free government,--all these are the
inevitable consequences of the principles adopted by the message,
whenever they shall be carried to their full extent. Hitherto it has
been thought that the final decision of constitutional questions
belonged to the supreme judicial tribunal. The very nature of free
government, it has been supposed, enjoins this; and our Constitution,
moreover, has been understood so to provide, clearly and expressly. It
is true, that each branch of the legislature has an undoubted right, in
the exercise of its functions, to consider the constitutionality of a
law proposed to be passed. This is naturally a part of its duty; and
neither branch can be compelled to pass any law, or do any other act,
which it deems to be beyond the reach of its constitutional power. The
President has the same right, when a bill is presented for his approval;
for he is, doubtless, bound to consider, in all cases, whether such bill
be compatible with the Constitution, and whether he can approve it
consistently with his oath of office. But when a law has been passed by
Congress, and approved by the President, it is now no longer in the
power, either of the same President, or his successors, to say whether
the law is constitutional or not. He is not at liberty to disregard it;
he is not at liberty to feel or to affect "constitutional scruples," and
to sit in judgment himself on the validity of a statute of the
government, and to nullify it, if he so chooses. After a law has passed
through all the requisite forms; after it has received the requisite
legislative sanction and the executive approval, the question of its
constitutionality then becomes a judicial question, and a judicial
question alone. In the courts that question may be raised, argued, and
adjudged; it can be adjudged nowhere else.
The President is as much bound by the law as any private citizen, and
can no more contest its validity than any private citizen. He may refuse
to obey the law, and so may a private citizen; but both do it at their
own peril, and neither of them can settle the question of its validity.
The President may _say_ a law is unconstitutional, but he is not the
judge. Who is to decide that question? The judiciary alone possesses
this unquestionable and hitherto unquestioned right. The judiciary is
the constitutional tribunal of appeal for the citizens, against both
Congress and the executive, in regard to the constitutionality of laws.
It has this jurisdiction expressly conferred upon it, and when it has
decided the question, its judgment must, from the very nature of all
judgments that are final, and from which there is no appeal, be
conclusive. Hitherto, this opinion, and a correspondent practice, have
prevailed, in America, with all wise and considerate men. If it were
otherwise, there would be no government of laws; but we should all live
under the government, the rule, the caprices, of individuals. If we
depart from the observance of these salutary principles, the executive
power becomes at once purely despotic; for the President, if the
principle and the reasoning of the message be sound, may either execute
or not execute the laws of the land, according to his sovereign
pleasure. He may refuse to put into execution one law, pronounced valid
by all branches of the government, and yet execute another, which may
have been by constitutional authority pronounced void.
On the argument of the message, the President of the United States
holds, under a new pretence and a new name, a _dispensing power_ over
the laws as absolute as was claimed by James the Second of England, a
month before he was compelled to fly the kingdom. That which is now
claimed by the President is in truth nothing less, and nothing else,
than the old dispensing power asserted by the kings of England in the
worst of times; the very climax, indeed, of all the preposterous
pretensions of the Tudor and the Stuart races. According to the
doctrines put forth by the President, although Congress may have passed
a law, and although the Supreme Court may have pronounced it
constitutional, yet it is, nevertheless, no law at all, if he, in his
good pleasure, sees fit to deny it effect; in other words, to repeal
and annul it. Sir, no President and no public man ever before advanced
such doctrines in the face of the nation. There never before was a
moment in which any President would have been tolerated in asserting
such a claim to despotic power. After Congress has passed the law, and
after the Supreme Court has pronounced its judgment on the very point in
controversy, the President has set up his own private judgment against
its constitutional interpretation. It is to be remembered, Sir, that it
is the present law, it is the act of 1816, it is the present charter of
the bank, which the President pronounces to be unconstitutional. It is
no bank _to be created_, it is no law proposed to be passed, which he
denounces; it is the _law now existing_, passed by Congress, approved by
President Madison, and sanctioned by a solemn judgment of the Supreme
Court, which he now declares unconstitutional, and which, of course, so
far as it may depend on him, cannot be executed. If these opinions of
the President be maintained, there is an end of all law and all judicial
authority. Statutes are but recommendations, judgments no more than
opinions. Both are equally destitute of binding force. Such a universal
power as is now claimed for him, a power of judging over the laws and
over the decisions of the judiciary, is nothing else but pure despotism.
If conceded to him, it makes him at once what Louis the Fourteenth
proclaimed himself to be when he said, "I am the State."
The Supreme Court has unanimously declared and adjudged that the
existing bank _is_ created by a constitutional law of Congress. As has
been before observed, this bank, so far as the present question is
concerned, is like that which was established in 1791 by Washington, and
sanctioned by the great men of that day. In every form, therefore, in
which the question can be raised, it has been raised and has been
settled. Every process and every mode of trial known to the Constitution
and laws have been exhausted, and always and without exception the
decision has been in favor of the validity of the law. But all this
practice, all this precedent, all this public approbation, all this
solemn adjudication directly on the point, is to be disregarded and
rejected, and the constitutional power flatly denied. And, Sir, if we
are startled at this conclusion, our surprise will not be lessened when
we examine the argument by which it is maintained.
By the Constitution, Congress is authorized to pass all laws "necessary
and proper" for carrying its own legislative powers into effect.
Congress has deemed a bank to be "necessary and proper" for these
purposes, and it has therefore established a bank. But although the law
has been passed, and the bank established, and the constitutional
validity of its charter solemnly adjudged, yet the President pronounces
it unconstitutional, because some of the powers bestowed on the bank
are, in his opinion, not necessary or proper. It would appear that
powers which in 1791 and in 1816, in the time of Washington and in the
time of Madison, were deemed "necessary and proper," are no longer to be
so regarded, and therefore the bank is unconstitutional. It has really
come to this, that the constitutionality of a bank is to depend upon the
opinion which one particular man may form of the utility or necessity of
some of the clauses in its charter! If that individual chooses to think
that a particular power contained in the charter is not necessary to the
proper constitution of the bank, then the act is unconstitutional!
Hitherto it has always been supposed that the question was of a very
different nature. It has been thought that the policy of granting a
particular charter may be materially dependent on the structure and
organization and powers of the proposed institution. But its general
constitutionality has never before been understood to turn on such
points. This would be making its constitutionality depend on subordinate
questions; on questions of expediency and questions of detail; upon that
which one man may think necessary, and another may not. If the
constitutional question were made to hinge on matters of this kind, how
could it ever be decided? All would depend on conjecture; on the
complexional feeling, on the prejudices, on the passions, of
individuals; on more or less practical skill or correct judgment in
regard to banking operations among those who should be the judges; on
the impulse of momentary interests, party objects, or personal purposes.
Put the question in this manner to a court of seven judges, to decide
whether a particular bank was constitutional, and it might be doubtful
whether they could come to any result, as they might well hold very
various opinions on the practical utility of many clauses of the
charter.
The question in that case would be, not whether the bank, in its general
frame, character, and objects, was a proper instrument to carry into
effect the powers of the government, but whether the particular powers,
direct or incidental, conferred on a particular bank, were better
calculated than all others to give success to its operations. For if
not, then the charter, according to this sort of reasoning, would be
unwarranted by the Constitution. This mode of construing the
Constitution is certainly a novel discovery. Its merits belong entirely
to the President and his advisers. According to this rule of
interpretation, if the President should be of opinion, that the capital
of the bank was larger, by a thousand dollars, than it ought to be; or
that the time for the continuance of the charter was a year too long; or
that it was unnecessary to require it, under penalty, to pay specie; or
needless to provide for punishing, as forgery, the counterfeiting of its
bills,--either of these reasons would be sufficient to render the
charter, in his opinion, unconstitutional, invalid, and nugatory. This
is a legitimate conclusion from the argument. Such a view of the subject
has certainly never before been taken. This train of reasoning has
hitherto not been heard within the halls of Congress, nor has any one
ventured upon it before the tribunals of justice. The first exhibition,
its first appearance, as an argument, is in a message of the President
of the United States.
According to that mode of construing the Constitution which was adopted
by Congress in 1791, and approved by Washington, and which has been
sanctioned by the judgment of the Supreme Court, and affirmed by the
practice of nearly forty years, the question upon the constitutionality
of the bank involves two inquiries. First, whether a bank, in its
general character, and with regard to the general objects with which
banks are usually connected, be, in itself, a fit means, a suitable
instrument, to carry into effect the powers granted to the government.
If it be so, then the second, and the only other question is, whether
the powers given in a particular charter are appropriate for a bank. If
they are powers which are appropriate for a bank, powers which Congress
may fairly consider to be useful to the bank or the country, then
Congress may confer these powers; because the discretion to be exercised
in framing the constitution of the bank belongs to Congress. One man may
think the granted powers not indispensable to the particular bank;
another may suppose them injudicious, or injurious; a third may imagine
that other powers, if granted in their stead, would be more beneficial;
but all these are matters of expediency, about which men may differ; and
the power of deciding upon them belongs to Congress.
I again repeat, Sir, that if, for reasons of this kind, the President
sees fit to negative a bill, on the ground of its being inexpedient or
impolitic, he has a right to do so. But remember, Sir, that we are now
on the constitutional question; remember that the argument of the
President is, that, because powers were given to the bank by the charter
of 1816 which he thinks unnecessary, that charter is unconstitutional.
Now, Sir, it will hardly be denied, or rather it was not denied or
doubted before this message came to us, that, if there was to be a bank,
the powers and duties of that bank must be prescribed in the law
creating it. Nobody but Congress, it has been thought, could grant
these powers and privileges, or prescribe their limitations. It is true,
indeed, that the message pretty plainly intimates, that the President
should have been _first_ consulted, and that he should have had the
framing of the bill; but we are not yet accustomed to that order of
things in enacting laws, nor do I know a parallel to this claim, thus
now brought forward, except that, in some peculiar cases in England,
highly affecting the royal prerogative, the assent of the monarch is
necessary before either the House of Peers, or his Majesty's faithful
Commons, are permitted to act upon the subject, or to entertain its
consideration. But supposing, Sir, that our accustomed forms and our
republican principles are still to be followed, and that a law creating
a bank is, like all other laws, to originate with Congress, and that the
President has nothing to do with it till it is presented for his
approval, then it is clear that the powers and duties of a proposed
bank, and all the terms and conditions annexed to it, must, in the first
place, be settled by Congress.
This power, if constitutional at all, is only constitutional in the
hands of Congress. Anywhere else, its exercise would be plain
usurpation. If, then, the authority to decide what powers ought to be
granted to a bank belong to Congress, and Congress shall have exercised
that power, it would seem little better than absurd to say, that its
act, nevertheless would be unconstitutional and invalid, if, in the
opinion of a third party, it had misjudged, on a question of expediency,
in the arrangement of details. According to such a mode of reasoning, a
mistake in the exercise of jurisdiction takes away the jurisdiction. If
Congress decide right, its decision may stand; if it decide wrong, its
decision is nugatory; and whether its decision be right or wrong,
another is to judge, although the original power of making the decision
must be allowed to be exclusively in Congress. This is the end to which
the argument of the message will conduct its followers.
Sir, in considering the authority of Congress to invest the bank with
the particular powers granted to it, the inquiry is not, and cannot be,
how appropriate these powers are, but whether they be at all
appropriate; whether they come within the range of a just and honest
discretion; whether Congress may fairly esteem them to be necessary. The
question is not, Are they the fittest means, the best means? or whether
the bank might not be established without them; but the question is, Are
they such as Congress, _bona fide_, may have regarded as appropriate to
the end? If any other rule were to be adopted, nothing could ever be
settled. A law would be constitutional to-day and unconstitutional
to-morrow. Its constitutionality would altogether depend upon individual
opinion on a matter of mere expediency. Indeed, such a case as that is
now actually before us. Mr. Madison deemed the powers given to the bank,
in its present charter, proper and necessary. He held the bank,
therefore, to be constitutional. But the present President, not
acknowledging that the power of deciding on these points rests with
Congress, nor with Congress and the then President, but setting up his
own opinion as the standard, declares the law now in being
unconstitutional, because the powers granted by it are, in his
estimation, not necessary and proper. I pray to be informed, Sir,
whether, upon similar grounds of reasoning, the President's own scheme
for a bank, if Congress should do so unlikely a thing as to adopt it,
would not become unconstitutional also, if it should so happen that his
successor should hold his bank in as light esteem as he holds those
established under the auspices of Washington and Madison?
If the reasoning of the message be well founded, it is clear that the
charter of the existing bank is not a law. The bank has no legal
existence; it is not responsible to government; it has no authority to
act; it is incapable of being an agent; the President may treat it as a
nullity to-morrow, withdraw from it all the public deposits, and set
afloat all the existing national arrangements of revenue and finance.
It is enough to state these monstrous consequences, to show that the
doctrine, principles, and pretensions of the message are entirely
inconsistent with a government of laws. If that which Congress has
enacted, and the Supreme Court has sanctioned, be not the law of the
land, then the reign of law has ceased, and the reign of individual
opinion has already begun.
The President, in his commentary on the details of the existing bank
charter, undertakes to prove that one provision, and another provision,
is not necessary and proper; because, as he thinks, the same objects
proposed to be accomplished by them might have been better attained in
another mode; and therefore such provisions are not necessary, and so
not warranted by the Constitution. Does not this show, that, according
to his own mode of reasoning, his _own_ scheme would not be
constitutional, since another scheme, which probably most people would
think a better one, might be substituted for it? Perhaps, in any bank
charter, there may be no provisions which may be justly regarded as
absolutely indispensable; since it is probable that for any of them some
others might be substituted. No bank, therefore, ever could be
established; because there never has been, and never could be, any
charter, of which every provision should appear to be indispensable, or
necessary and proper, in the judgment of every individual. To admit,
therefore, that there may be a constitutional bank, and yet to contend
for such a mode of judging of its provisions and details as the message
adopts, involves an absurdity. Any charter which may be framed may be
taken up, and each power conferred by it successively denied, on the
ground, that, in regard to each, either no such power is "necessary or
proper" in a bank, or, which is the same thing in effect, some other
power might be substituted for it, and supply its place. That can never
be necessary, in the sense in which the message understands that term,
which may be dispensed with; and it cannot be said that any power may
not be dispensed with, if there be some other which might be substituted
for it, and which would accomplish the same end. Therefore, no bank
could ever be constitutional, because none could be established which
should not contain some provisions which might have been omitted, and
their place supplied by others.
Mr. President, I have understood the true and well-established doctrine
to be, that, after it has been decided that it is competent for Congress
to establish a bank, then it follows that it may create such a bank as
it judges, in its discretion, to be best, and invest it with all such
power as it may deem fit and suitable; with this limitation, always,
that all is to be done in the _bona fide_ execution of the power to
create a bank. If the granted powers are appropriate to the professed
end, so that the granting of them cannot be regarded as usurpation of
authority by Congress, or an evasion of constitutional restrictions,
under color of establishing a bank, then the charter is constitutional,
whether these powers be thought indispensable by others or not, or
whether even Congress itself deemed them absolutely indispensable, or
only thought them fit and suitable, or whether they are more or less
appropriate to their end. It is enough that they are appropriate; it is
enough that they are suited to produce the effects designed; and no
comparison is to be instituted, in order to try their constitutionality,
between them and others which may be suggested. A case analogous to the
present is found in the constitutional power of Congress over the mail.
The Constitution says no more than that "Congress shall have power to
establish post-offices and post-roads"; and, in the general clause, "all
powers necessary and proper" to give effect to this. In the execution of
this power, Congress has protected the mail, by providing that robbery
of it shall be punished with death. Is this infliction of capital
punishment constitutional? Certainly it is not, unless it be both
"proper and necessary." The President may not think it necessary or
proper; the law, then, according to the system of reasoning enforced by
the message, is of no binding force, and the President may disobey it,
and refuse to see it executed.
The truth is, Mr. President, that if the general object, the
subject-matter, properly belong to Congress, all its incidents belong to
Congress also. If Congress is to establish post-offices and post-roads,
it may, for that end, adopt one set of regulations or another; and
either would be constitutional. So the details of one bank are as
constitutional as those of another, if they are confined fairly and
honestly to the purpose of organizing the institution, and rendering it
useful. One _bank_ is as constitutional as another _bank_. If Congress
possesses the power to make a bank, it possesses the power to make it
efficient, and competent to produce the good expected from it. It may
clothe it with all such power and privileges, not otherwise inconsistent
with the Constitution, as may be necessary, in its own judgment, to make
it what government deems it should be. It may confer on it such
immunities as may induce individuals to become stockholders, and to
furnish the capital; and since the extent of these immunities and
privileges is matter of discretion, and matter of opinion, Congress only
can decide it, because Congress alone can frame or grant the charter. A
charter, thus granted to individuals, becomes a contract with them, upon
their compliance with its terms. The bank becomes an agent, bound to
perform certain duties, and entitled to certain stipulated rights and
privileges, in compensation for the proper discharge of these duties;
and all these stipulations, so long as they are appropriate to the
object professed, and not repugnant to any other constitutional
injunction, are entirely within the competency of Congress. And yet,
Sir, the message of the President toils through all the commonplace
topics of monopoly, the right of taxation, the suffering of the poor,
and the arrogance of the rich, with as much painful effort, as if one,
or another, or all of them, had something to do with the constitutional
question.
What is called the "monopoly" is made the subject of repeated rehearsal,
in terms of special complaint. By this "monopoly," I suppose, is
understood the restriction contained in the charter, that Congress shall
not, during the twenty years, create another bank. Now, Sir, let me ask,
Who would think of creating a bank, inviting stockholders into it, with
large investments, imposing upon it heavy duties, as connected with the
government, receiving some millions of dollars as a _bonus_ or premium,
and yet retaining the power of granting, the next day, another charter,
which would destroy the whole value of the first? If this be an
unconstitutional restraint on Congress, the Constitution must be
strangely at variance with the dictates both of good sense and sound
morals. Did not the first Bank of the United States contain a similar
restriction? And have not the States granted bank charters with a
condition, that, if the charter should be accepted, they would not grant
others? States have certainly done so; and, in some instances, where no
_bonus_ or premium was paid at all; but from the mere desire to give
effect to the charter, by inducing individuals to accept it and organize
the institution. The President declares that this restriction is not
necessary to the efficiency of the bank; but that is the very thing
which Congress and his predecessor in office were called on to decide,
and which they did decide, when the one passed and the other approved
the act. And he has now no more authority to pronounce his judgment on
that act than any other individual in society. It is not his province to
decide on the constitutionality of statutes which Congress has passed,
and his predecessors approved.
There is another sentiment in this part of the message, which we should
hardly have expected to find in a paper which is supposed, whoever may
have drawn it up, to have passed under the review of professional
characters. The message declares, that this limitation to create no
other bank is unconstitutional, because, although Congress may use the
discretion vested in them, "they may not limit the discretion of their
successors." This reason is almost too superficial to require an answer.
Every one at all accustomed to the consideration of such subjects knows
that every Congress can bind its successors to the same extent that it
can bind itself. The power of Congress is always the same; the authority
of law always the same. It is true, we speak of the Twentieth Congress
and the Twenty-first Congress, but this is only to denote the period of
time, or to mark the successive organizations of the House of
Representatives under the successive periodical election of its members.
As a politic body, as the legislative power of the government, Congress
is always continuous, always identical. A particular Congress, as we
speak of it, for instance, the present Congress, can no farther restrain
itself from doing what it may choose to do at the next session, than it
can restrain any succeeding Congress from doing what it may choose. Any
Congress may repeal the act or law of its predecessor, if in its nature
it be repealable, just as it may repeal its own act; and if a law or an
act be irrepealable in its nature, it can no more be repealed by a
subsequent Congress than by that which passed it. All this is familiar
to everybody. And Congress, like every other legislature, often passes
acts which, being in the nature of grants or contracts, are irrepealable
ever afterwards. The message, in a strain of argument which it is
difficult to treat with ordinary respect, declares that this restriction
on the power of Congress, as to the establishment of other banks, is a
palpable attempt to amend the Constitution by an act of legislation. The
reason on which this observation purports to be founded is, that
Congress, by the Constitution, is to have exclusive legislation over the
District of Columbia; and when the bank charter declares that Congress
will create no new bank within the District, it annuls this power of
exclusive legislation! I must say, that this reasoning hardly rises high
enough to entitle it to a passing notice. It would be doing it too much
credit to call it plausible. No one needs to be informed that exclusive
power of legislation is not unlimited power of legislation; and if it
were, how can that legislative power be unlimited that cannot restrain
itself, that cannot bind itself by contract? Whether as a government or
as an individual, that being is fettered and restrained which is not
capable of binding itself by ordinary obligation. Every legislature
binds itself, whenever it makes a grant, enters into a contract, bestows
an office, or does any other act or thing which is in its nature
irrepealable. And this, instead of detracting from its legislative
power, is one of the modes of exercising that power. The legislative
power of Congress over the District of Columbia would not be full and
complete, if it might not make just such a stipulation as the bank
charter contains.
As to the taxing power of the States, about which the message says so
much, the proper answer to all it says is, that the States possess no
power to tax any instrument of the government of the United States. It
was no part of their power before the Constitution, and they derive no
such power from any of its provisions. It is nowhere given to them.
Could a State tax the _coin_ of the United States at the mint? Could a
State lay a stamp tax on the process of the courts of the United States,
and on custom-house papers? Could it tax the transportation of the mail,
or the ships of war, or the ordnance, or the muniments of war, of the
United States? The reason that these cannot be taxed by a State is, that
they are means and instruments of the government of the United States.
The establishment of a bank exempt from State taxation takes away no
existing right in a State. It leaves it all it ever possessed. But the
complaint is, that the bank charter does not _confer_ the power of
taxation. This, certainly, though not a new, (for the same argument was
urged here,) appears to me to be a strange, mode of asserting and
maintaining State rights. The power of taxation is a sovereign power;
and the President and those who think with him are of opinion, in a
given case, that this sovereign power should be conferred on the States
by an act of Congress. There is, if I mistake not, Sir, as little
compliment to State sovereignty in this idea, as there is of sound
constitutional doctrine. Sovereign rights held under the grant of an act
of Congress present a proposition quite new in constitutional law.
The President himself even admits that an instrument of the government
of the United States ought not, as such, to be taxed by the States; yet
he contends for such a power of taxing property connected with this
instrument, and essential to its very being, as places its whole
existence in the pleasure of the States. It is not enough that the
States may tax all the property of all their own citizens, wherever
invested or however employed. The complaint is, that the power of State
taxation does not reach so far as to take cognizance over persons out of
the State, and to tax them for a franchise lawfully exercised under the
authority of the United States. Sir, when did the power of the States,
or indeed of any government, go to such an extent as that? Clearly
never. The taxing power of all communities is necessarily and justly
limited to the property of its own citizens, and to the property of
others, having a distinct local existence as property, within its
jurisdiction; it does not extend to rights and franchises, rightly
exercised, under the authority of other governments, nor to persons
beyond its jurisdiction. As the Constitution has left the taxing power
of the States, so the bank charter leaves it. Congress has not
undertaken either to take away, or to confer, a taxing power; nor to
enlarge, or to restrain it; if it were to do either, I hardly know which
of the two would be the least excusable.
I beg leave to repeat, Mr. President, that what I have now been
considering are the President's objections, not to the policy or
expediency, but to the constitutionality, of the bank; and not to the
constitutionality of any new or proposed bank, but of the bank as it now
is, and as it has long existed. If the President had declined to approve
this bill because he thought the original charter unwisely granted, and
the bank, in point of policy and expediency, objectionable or
mischievous, and in that view only had suggested the reasons now urged
by him, his argument, however inconclusive, would have been
intelligible, and not, in its whole frame and scope, inconsistent with
all well-established first principles. His rejection of the bill, in
that case, would have been, no doubt, an extraordinary exercise of
power; but it would have been, nevertheless, the exercise of a power
belonging to his office, and trusted by the Constitution to his
discretion. But when he puts forth an array of arguments such as the
message employs, not against the expediency of the bank, but against its
constitutional existence, he confounds all distinctions, mixes questions
of policy and questions of right together, and turns all constitutional
restraints into mere matters of opinion. As far as its power extends,
either in its direct effects or as a precedent, the message not only
unsettles every thing which has been settled under the Constitution, but
would show, also, that the Constitution itself is utterly incapable of
any fixed construction or definite interpretation, and that there is no
possibility of establishing, by its authority, any practical limitations
on the powers of the respective branches of the government.
When the message denies, as it does, the authority of the Supreme Court
to decide on constitutional questions, it effects, so far as the opinion
of the President and his authority can effect it, a complete change in
our government. It does two things: first, it converts constitutional
limitations of power into mere matters of opinion, and then it strikes
the judicial department, as an efficient department, out of our system.
But the message by no means stops even at this point. Having denied to
Congress the authority of judging what powers may be constitutionally
conferred on a bank, and having erected the judgment of the President
himself into a standard by which to try the constitutional character of
such powers, and having denounced the authority of the Supreme Court to
decide finally on constitutional questions, the message proceeds to
claim for the President, not the power of approval, but the primary
power, the power of originating laws. The President informs Congress,
that _he_ would have sent them such a charter, if it had been properly
asked for, as they ought to confer. He very plainly intimates, that, in
his opinion, the establishment of all laws, of this nature at least,
belongs to the functions of the executive government; and that Congress
ought to have waited for the manifestation of the executive will, before
it presumed to touch the subject. Such, Mr. President, stripped of their
disguises, are the real pretences set up in behalf of the executive
power in this most extraordinary paper.
Mr. President, we have arrived at a new epoch. We are entering on
experiments, with the government and the Constitution of the country,
hitherto untried, and of fearful and appalling aspect. This message
calls us to the contemplation of a future which little resembles the
past. Its principles are at war with all that public opinion has
sustained, and all which the experience of the government has
sanctioned. It denies first principles; it contradicts truths,
heretofore received as indisputable. It denies to the judiciary the
interpretation of law, and claims to divide with Congress the power of
originating statutes. It extends the grasp of executive pretension over
every power of the government. But this is not all. It presents the
chief magistrate of the Union in the attitude of arguing away the powers
of that government over which he has been chosen to preside; and
adopting for this purpose modes of reasoning which, even under the
influence of all proper feeling towards high official station, it is
difficult to regard as respectable. It appeals to every prejudice which
may betray men into a mistaken view of their own interests, and to every
passion which may lead them to disobey the impulses of their
understanding. It urges all the specious topics of State rights and
national encroachment against that which a great majority of the States
have affirmed to be rightful, and in which all of them have acquiesced.
It sows, in an unsparing manner, the seeds of jealousy and ill-will
against that government of which its author is the official head. It
raises a cry, that liberty is in danger, at the very moment when it puts
forth claims to powers heretofore unknown and unheard of. It affects
alarm for the public freedom, when nothing endangers that freedom so
much as its own unparalleled pretences. This, even, is not all. It
manifestly seeks to inflame the poor against the rich; it wantonly
attacks whole classes of the people, for the purpose of turning against
them the prejudices and the resentments of other classes. It is a state
paper which finds no topic too exciting for its use, no passion too
inflammable for its address and its solicitation.
Such is this message. It remains now for the people of the United States
to choose between the principles here avowed and their government. These
cannot subsist together. The one or the other must be rejected. If the
sentiments of the message shall receive general approbation, the
Constitution will have perished even earlier than the moment which its
enemies originally allowed for the termination of its existence. It will
not have survived to its fiftieth year.