THE PRESIDENTIAL VETO OF THE UNITED STATES BANK BILL.

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.

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