ON THE VETO OF THE FISCAL BANK BILL BY PRESIDENT TYLER.
IN THE SENATE OF THE UNITED STATES, AUGUST 19, 1841.
[A FEW days after the inauguration of general Harrison as president of the United States—on the seventeenth of March, 1841—he issued a proclamation convening an extra session of congress on the thirty-first of May, on which day both houses assembled, and formed a quorum. President Harrison having died on the fourth of April, was succeeded by the vice-president Tyler, who, in his message to congress, recommended, among other matters, the adoption of measures to create a fiscal agent for the convenience of government, and the regulation of the currency. A bill to establish a fiscal bank of the United States was reported, and, after discussion, passed the senate by a vote of twenty-six to twenty-three, and the house, by one hundred and twenty-eight to ninety-one. On the sixteenth of August, president Tyler, much to the surprise and regret of those to whom he owed his election, returned the bill to the senate, with his objections, and on the nineteenth, the executive message being under consideration, Mr. Clay addressed the senate as follows; to which Mr. Rives replied, and the same day Mr. Clay made his rejoinder to Mr. Rives, in the remarks following this speech.]
MR. PRESIDENT, the bill which forms the present subject of our deliberations, had passed both houses of congress by decisive majorities, and, in conformity with the requirement of the constitution, was presented to the president of the United States for his consideration. He has returned it to the senate, in which it originated, according to the direction of the constitution, with a message announcing his veto of the bill, and containing his objections to its passage. And the question now to be decided is, shall the bill pass, by the required constitutional majority of two thirds, the president’s objections notwithstanding?
Knowing, sir, but too well that no such majority can be obtained, and that the bill must fall, I would have been rejoiced to have found myself at liberty to abstain from saying one word on this painful occasion. But the president has not allowed me to give a silent vote. I think, with all respect and deference to him, he has not reciprocated the friendly spirit of concession and compromise which animated congress in the provisions of this bill, and especially in the modification of the sixteenth fundamental condition of the bank. He has commented, I think, with undeserved severity, on that part of the bill; he has used, I am sure unintentionally,harsh if not reproachful language; and he has made the very concession, which was prompted as a peace-offering, and from friendly considerations, the cause of stronger and more decided disapprobation of the bill. Standing in the relation to that bill which I do, and especially to the exceptionable clause, the duty which I owe to the senate and to the country, and self-respect, impose upon me the obligation of at least attempting the vindication of a measure which has met with a fate so unmerited, and so unexpected.
On the fourth of April last, the lamented Harrison, the president of the United States, paid the debt of nature. President Tyler, who, as vice-president, succeeded to the duties of that office, arrived in the city of Washington, on the sixth of that month. He found the whole metropolis wrapped in gloom, every heart filled with sorrow and sadness, every eye streaming with tears, and the surrounding hills yet flinging back the echo of the bells which were tolled on that melancholy occasion. On entering the presidential mansion, he contemplated the pale body of his predecessor stretched before him, and clothed in the black habiliments of death. At that solemn moment, I have no doubt that the heart of president Tyler was overflowing with mingled emotions of grief, of patriotism, and of gratitude—above all, of gratitude to that country, by a majority of whose suffrages, bestowed at the preceding November, he then stood the most distinguished, the most elevated, the most honored of all living whigs of the United States.
It was under these circumstances, and in this probable state of mind, that president Tyler, on the tenth day of the same month of April, voluntarily promulgated an address to the people of the United States. That address was in the nature of a coronation oath, which the chief of the state in other countries, and under other forms, takes, upon ascending the throne. It referred to the solemn obligations, and the profound sense of duty, under which the new president entered upon the high trust which had devolved upon him, by the joint acts of the people and of Providence, and it stated the principles, and delineated the policy, by which he would be governed in his exalted station. It was emphatically a whig address, from beginning to end—every inch of it was whig, and was patriotic.
In that address the president, in respect to the subject matter embraced in the present bill, held the following conclusive and emphatic language.
‘I shall promptly give my sanction to any constitutional measure, which, originating in congress, shall have for its object the restoration of a sound circulating medium, so essentially necessary to give confidence in all the transactions of life, to secure to industry its just and adequate rewards, and to reëstablish the public prosperity. In deciding upon the adaptation of any such measure to the end proposed, as well as its conformity to the constitution, I shall resort to the fathers of the great republican school for advice and instruction, to be drawn from their sage views of our system of government, and the light of their ever glorious example.’
To this clause in the address of the president, I believe but one interpretation was given throughout this whole country, by friend and foe, by whig and democrat, and by the presses of both parties. It was, by every man with whom I conversed on the subject at the time of its appearance, or of whom I have since inquired, construed to mean that the president intended to occupy the Madison ground, and to regard the question of the power to establish a national bank as immovably settled. And I think I may confidently appeal to the senate and to the country, to sustain the fact, that this was the contemporaneous and unanimous judgment of the public. Reverting back to the period of the promulgation of the address, could any other construction have been given to its language? What is it? ‘I shall promptly give my sanction to any constitutional measure, which, originating in congress,’ shall have certain defined objects in view. He concedes the vital importance of a sound circulating medium to industry, and to the public prosperity. He concedes that its origin must be in congress. And to prevent any inference from the qualification, which he prefixes to the measure, being interpreted to mean that a United States bank was unconstitutional, he declares, that in deciding on the adaptation of the measure to the end proposed, and its conformity to the constitution, he will resort to the fathers of the great republican school. And who were they? If the father of his country is to be excluded, are Madison, (the father of the constitution,) Jefferson, Monroe, Gerry, Gallatin, and the long list of republicans who acted with them, not to be regarded as among those fathers? But president Tyler declares, not only that he should appeal to them for advice and instruction, but to the light of their ever glorious EXAMPLE. What example? What other meaning could have been possibly applied to the phrase, than that he intended to refer to what had been done during the administration of Jefferson, Madison, and Monroe?
Entertaining this opinion of the address, I came to Washington at the commencement of the session, with the most confident and buoyant hopes that the whigs would be able to carry all their prominent measures, and especially a bank of the United States, by far that one of the greatest immediate importance. I anticipated nothing but cordial coöperation between the two departments of government; and I reflected with pleasure, that I should find, at the head of the executive branch, a personal and political friend, whom I had long and intimately known, and highly esteemed. It will not be my fault, if our amicable relations should unhappily cease, in consequence of any difference of opinion between us on this occasion. The president has been always perfectly familiar with my opinion on this bank question.
Upon the opening of the session, but especially on the receipt of a plan of a national bank, as proposed by the secretary of thetreasury, fears were excited that the president had been misunderstood in his address, and that he had not waived but adhered to his constitutional scruples. Under these circumstances, it was hoped, that, by the indulgence of a mutual spirit of compromise and concession, a bank, competent to fulfil the expectations and satisfy the wants of the people, might be established.
Under the influence of that spirit, the senate and the house agreed, first, as to the name of the proposed bank. I confess, sir, that there was something exceedingly outré and revolting to my ears, in the term ‘fiscal bank;’ but I thought, ‘what is there in a name? A rose by any other name would smell as sweet.’ Looking, therefore, rather to the utility of the substantial faculties, than to the name of the contemplated institution, we consented to that which was proposed.
Secondly, as to the place of location of the bank. Although Washington had passed through my mind as among the cities in which it might be expedient to place the bank, it was believed to be the least eligible of some four or five other cities. Nevertheless, we consented to fix it here.
And, lastly, in respect to the branching power, there was not, probably, a solitary vote given in either house of congress for the bill, that did not greatly prefer the unqualified branching power, as asserted in the charters of the two former banks of the United States, to the sixteenth fundamental condition, as finally incorporated in this bill. It is perfectly manifest, therefore, that it was not in conformity with the opinion and wish of majorities in congress, but in a friendly spirit of concession towards the president and his particular friends, that the clause assumed that form. So repugnant was it to some of the best friends of a national bank in the other house, that they finally voted against the bill, because it contained that compromise of the branching power.
It is true, that in presenting the compromise to the senate, I stated, as was the fact, that I did not know whether it would be acceptable to the president or not; that, according to my opinion, each department of the government should act upon its own responsibility, independently of the other; and that I presented the modification of the branching power because it was necessary to insure the passage of the bill in the senate, having ascertained that the vote would stand twenty-six against it to twenty-five, if the form of that power which had been reported by the committee were persisted in. But I nevertheless did entertain the most confident hopes and expectations, that the bill would receive the sanction of the president; and this motive, although not the immediate one, had great weight in the introduction and adoption of the compromise clause. I knew that our friends who would not vote for the bill as reported, were actuated, as they avowed, by considerations of union and harmony, growing out of supposed views ofthe president, and I presumed that he would not fail to feel and appreciate their sacrifices. But I deeply regret that we were mistaken. Notwithstanding all our concessions, made in a genuine and sincere spirit of conciliation, the sanction of the president could not be obtained, and the bill has been returned by him with his objections.
And I shall now proceed to consider those objections, with as much brevity as possible, but with the most perfect respect, official and personal, towards the chief magistrate.
After stating that the power of congress to establish a national bank, to operate per se, has been a controverted question from the origin of the government, the president remarks:
‘Men most justly and deservedly esteemed for their high intellectual endowments, their virtue and their patriotism, have, in regard to it, entertained different and conflicting opinions. Congress have differed. The approval of one president has been followed by the disapproval of another.’
From this statement of the case it may be inferred, that the president considers the weight of authority, pro and con, to be equal and balanced. But if he intended to make such an array of it, if he intended to say that it was an equilibrium, I must respectfully, but most decidedly, dissent from him. I think the conjoint testimony of history, tradition, and the knowledge of living witnesses proves the contrary. How stands the question as to the opinion of congresses? The congress of 1791, the congress of 1813–14, the congress of 1815–16, the congress of 1831–32, and, finally, the present congress, have all respectively and unequivocally, affirmed the existence of a power in congress to establish a national bank to operate per se. We behold, then, the concurrent opinion of five different congresses on one side. And what congress is there on the opposite side? The congress of 1811? I was a member of the senate in that year, when it decided, by the casting vote of the vice-president, against the renewal of the charter of the old bank of the United States. And I now here, in my place, add to the testimony already before the public, by declaring that it is within my certain knowledge, that that decision of the senate did not proceed from a disbelief of a majority of the senate in the power of congress to establish a national bank, but from combined considerations of expediency and constitutionality. A majority of the senate, on the contrary, as I know, entertained no doubt as to the power of congress. Thus the account, as to congresses, stands five for and not one, or, at most, not more than one, against the power.
Let us now look into the state of authority derivable from the opinions of presidents of the United States. President Washington believed in the power of congress, and approved a bank bill. President Jefferson approved acts to extend branches into otherparts of the United States, and to punish counterfeiters of the notes of the bank—acts which were devoid of all justification, whatever, upon the assumption of the unconstitutionality of the bank. For how could branches be extended, or punishment be lawfully inflicted, upon the counterfeiters of the paper of a corporation which came into existence without any authority, and in violation of the constitution of the land? James Madison, notwithstanding those early scruples which he had entertained, and which he probably still cherished, sanctioned and signed a bill to charter the late bank of the United States. It is perfectly well known that Mr. Monroe never did entertain any scruples or doubts in regard to the power of congress. Here, then, are four presidents of the United States who have directly or collaterally borne official testimony to the existence of the bank power in congress. And what president is there, that ever bore unequivocally opposite testimony—that disapproved a bank charter, in the sense intended by president Tyler? General Jackson, although he did apply the veto power to the bill for rechartering the late bank of the United States in 1832, it is within the perfect recollection of us all, not only testified to the utility of a bank of the United States, but declared, that, if he had been applied to by congress, he could have furnished the plan of such a bank.
Thus, Mr. President, we perceive, that, in reviewing the action of the legislative and executive departments of the government, there is a vast preponderance of the weight of authority maintaining the existence of the power in congress. But president Tyler has, I presume unintentionally, wholly omitted to notice the judgment and decisions of the third coördinate department of the government upon this controverted question—that department, whose interpretations of the constitution, within its proper jurisdiction and sphere of action, are binding upon all; and which, therefore, may be considered as exercising a controlling power over both the other departments. The supreme court of the United States, with its late chief justice, the illustrious Marshall, at its head, unanimously decided that congress possessed this bank power; and this adjudication was sustained and reaffirmed whenever afterwards the question arose before the court.
After recounting the occasions, during his public career, on which he had expressed an opinion against the power of congress to charter a bank of the United States, the president proceeds to say:
‘Entertaining the opinions alluded to, and having taken this oath, the senate and the country will see that I could not give my sanction to a measure of the character described, without surrendering all claim to the respect of honorable men—all confidence on the part of the people, all self-respect, all regard for moral and religious obligations; without an observance of which no government can be prosperous, and no people can be happy. It would be to commit a crime, which I would not wilfully commit to gain any earthly reward, and which would justly subject me to the ridicule and scorn of all virtuous men.’
Mr. President, I must think, and hope I may be allowed to say, with profound deference to the chief magistrate, that it appears to me, he has viewed with too lively sensibility the personal consequences to himself of his approval of the bill; and that, surrendering himself to a vivid imagination, he has depicted them in much too glowing and exaggerated colors, and that it would have been most happy, if he had looked more to the deplorable consequences of a veto upon the hopes, the interests, and the happiness of his country. Does it follow that a magistrate who yields his private judgment to the concurring authority of numerous decisions, repeatedly and deliberately pronounced, after the lapse of long intervals, by all the departments of government, and by all parties, incurs the dreadful penalties described by the president? Can any man be disgraced and dishonored, who yields his private opinion to the judgment of the nation? In this case, the country, (I mean a majority,) congress, and, according to common fame, a unanimous cabinet, were all united in favor of the bill. Should any man feel himself humbled and degraded in yielding to the conjoint force of such high authority? Does any man, who at one period of his life shall have expressed a particular opinion, and at a subsequent period shall act upon the opposite opinion, expose himself to the terrible consequences which have been portrayed by the president? How is it with the judge, in the case by no means rare, who bows to the authority of repeated precedents, settling a particular question, whilst in his private judgment, the law was otherwise? How is it with that numerous class of public men in this country, and with the two great parties that have divided it, who, at different periods have maintained and acted on opposite opinions in respect to this very bank question?
How is it with James Madison, the father of the constitution—that great man whose services to his country placed him only second to Washington; whose virtues and purity in private life, whose patriotism, intelligence, and wisdom in public councils, stand unsurpassed? He was a member of the national convention that formed, and of the Virginia convention that adopted, the constitution. No man understood it better than he did. He was opposed, in 1791, to the establishment of the bank of the United States, upon constitutional ground; and, in 1816, he approved and signed the charter of the late bank of the United States. It is a part of the secret history connected with the first bank, that James Madison had, at the instance of general Washington, prepared a veto for him in the contingency of his rejection of the bill. Thus stood James Madison, when, in 1815, he applied the veto to a bill to charter a bank upon considerations of expediency, but with a clear and express admission of the existence of a constitutional power of congress to charter one. In 1816, the bill which was then presented to him being free from the objections applicable tothat of the previous year, he sanctioned and signed it. Did James Madison surrender ‘all claim to the respect of honorable men, all confidence on the part of the people, all self-respect, all regard for moral and religious obligations?’ Did the pure, the virtuous, the gifted James Madison, by his sanction and signature to the charter of the late bank of the United States, commit a crime, which justly subjected him ‘to the ridicule and scorn of all virtuous men?’
Not only did the president, as it respectfully appears to me, state entirely too strongly the consequences of his approval of the bill, but is he perfectly correct in treating the question, (as he seems to me to have done,) which he was called upon to decide, as presenting the sole alternative of his direct approval or rejection of the bill? Was the preservation of the consistency and the conscience of the president wholly irreconcilable with the restoration of the blessings of a sound currency, regular and moderate exchanges, and the revival of confidence and business, which congress believes will be secured by a national bank? Was there no alternative but to prolong the sufferings of a bleeding country, or to send us this veto? From the administration of the executive department of the government, during the last twelve years, has sprung most of the public ills which have afflicted the people. Was it necessary that that source of suffering should continue to operate, in order to preserve the conscience of the president unviolated? Was that the only sad and deplorable alternative? I think, Mr. President, there were other alternatives worthy of the serious and patriotic consideration of the president. The bill might have become a law, in virtue of the provision which required its return within ten days. If the president had retained it three days longer, it would have been a law, without his sanction and without his signature. In such a contingency, the president would have remained passive, and would not have been liable to any accusation of having himself violated the constitution. All that could have been justly said would be, that he did not choose to throw himself in the way as an obstacle to the passage of a measure indispensable to the prosperity of the nation, in the judgment of the party which brought him into power, of the whig congress which he first met, and, if public fame speaks true, of the cabinet which the lamented Harrison called around him, and which he voluntarily continued. In an analagous case, Thomas McKean, when governor of Pennsylvania, than whom the United States have produced but few men of equal vigor of mind and firmness of purpose, permitted a bill to become a law, although, in his opinion, it was contrary to the constitution of that state. And I have heard, and, from the creditable nature of the source, I am inclined to believe, although I will not vouch for the fact, that towards the close of the charter of the first bank of the United States during the second term of Mr. Jefferson, someconsideration of the question of the renewal of the charter was entertained, and that he expressed a wish, that, if the charter were renewed, it might be effected by the operation of the ten days’ provision, and his consistency thus preserved.
If it were possible to disinter the venerated remains of James Madison, reanimate his perishing form, and place him once more in that chair of state, which he so much adorned, what would have been his course, if this bill had been presented to him, even supposing him never to have announced his acquiescence in the settled judgment of the nation? He would have said, that human controversy, in regard to a single question, should not be perpetual, and ought to have a termination. This, about the power to establish a bank of the United States, has been long enough continued. The nation, under all the forms of its public action, has often and deliberately decided it. A bank, and associated financial and currency questions, which had long slept, were revived, and have divided the nation during the last ten years of arduous and bitter struggle; and the party which put down the bank, and which occasioned all the disorders in our currency and finances, has itself been signally put down, by one of those great moral and political revolutions which a free, a patriotic people can but seldom arouse itself to make. Human infallibility has not been granted by God; and the chances of error are much greater on the side of one man, than on that of the majority of a whole people and their successive legislatures during a long period of time. I yield to the irresistible force of authority. I will not put myself in opposition to a measure so imperatively demanded by the public voice, and so essential to elevate my depressed and suffering countrymen.
And why should not president Tyler have suffered the bill to become a law without his signature? Without meaning the slightest possible disrespect to him, (nothing is further from my heart than the exhibition of any such feeling towards that distinguished citizen, long my personal friend,) it cannot be forgotten, that he came into his present office under peculiar circumstances. The people did not foresee the contingency which has happened. They voted for him as vice-president. They did not, therefore, scrutinize his opinions with the care which they probably ought to have done, and would have done, if they could have looked into futurity. If the present state of the fact could have been anticipated—if at Harrisburg, or at the polls, it had been foreseen, that general Harrison would die in one short month after the commencement of his administration; that vice-president Tyler would be elevated to the presidential chair; that a bill, passed by decisive majorities of the first whig congress, chartering a national bank, would be presented for his sanction, and that he would veto the bill, do I hazard any thing, when I express the conviction, that he wouldnot have received a solitary vote in the nominating convention nor one solitary electoral vote in any state in the union?
Shall I be told that the honor, the firmness, the independence of the chief magistrate might have been drawn in question if he had remained passive, and so permitted the bill to become a law? I answer, that the office of chief magistrate is a sacred and exalted trust, created and conferred for the benefit of the nation, and not for the private advantage of the person who fills it. Can any man’s reputation for firmness, independence, and honor, be of more importance than the welfare of a great people? There is nothing, in my humble judgment, in such a course, incompatible with honor, with firmness, with independence, properly understood. Certainly, I most respectfully think, in reference to a measure like this, recommended by such high sanctions—by five congresses, by the authority of four presidents, by repeated decisions of the supreme court, by the acquiescence and judgment of the people of the United States during long periods of time, by its salutary operation on the interests of the community for a space of forty years, and demanded by the people whose suffrages placed president Tyler in that second office from whence he was translated to the first that he might have suppressed the promptings of all personal pride of private opinion, if any arose in his bosom, and yielded to the wishes and wants of his country. Nor do I believe, that, in such a course, he would have made the smallest sacrifice, in a just sense, of personal honor, firmness, or independence.
But, sir, there was still a third alternative, to which I allude, not because I mean to intimate that it should be embraced, but because I am reminded of it by a memorable event in the life of president Tyler. It will be recollected, that, after the senate had passed the resolutions declaring the removal of the public deposits from the late bank of the United States to have been derogatory to the constitution and laws of the United States, for which resolution, president, then senator Tyler, had voted, the general assembly of Virginia instructed the senators from that state to vote for the expunging of that resolution. Senator Tyler declined voting in conformity with that instruction, and resigned his seat in the senate of the United States. This he did because he could not conform, and did not think it right to go counter, to the wishes of those who had placed him in the senate. If, when the people of Virginia, or the general assembly of Virginia, were his only constituency, he would not set up his own particular opinion, in opposition to theirs, what ought to be the rule of his conduct when the people of twenty-six states—a whole nation—compose his constituency? Is the will of the constituency of one state to be respected, and that of twenty-six to be wholly disregarded? Is obedience due only to the single state of Virginia? The president admits, that the bank question deeply agitated and continues to agitate the nation. It is incontestable,that it was the great, absorbing, and controlling question, in all our recent divisions and exertions. I am firmly convinced, and it is my deliberate judgment, that an immense majority, not less than two thirds of the nation, desire such an institution. All doubts in this respect ought to be dispelled, by the recent decisions of the two houses of congress. I speak of them as evidence of popular opinion. In the house of representatives the majority was one hundred and thirty-one to one hundred. If the house had been full, and but for the modification of the sixteenth fundamental condition, there would have been a probable majority of forty-seven. Is it to be believed that this large majority of the immediate representatives of the people, fresh from amongst them, and to whom the president seemed inclined, in his opening message, to refer this very question, have mistaken the wishes of their constituents?
I pass the sixteenth fundamental condition, in respect to the branching power, on which I regret to feel myself obliged to say, that I think the president has commented with unexampled severity, and with a harshness of language not favorable to the maintenance of that friendly and harmonious intercourse, which is so desirable between coördinate departments of the government. The president could not have been uninformed, that every one of the twenty-six senators, and every one of the hundred and thirty-one representatives who voted for the bill, if left to his own separate wishes, would have preferred the branching power to have been conferred unconditionally, as it was in the charters of the two former banks of the United States. In consenting to the restrictions upon the exercise of that power, he must have been perfectly aware, that they were actuated by a friendly spirit of compromise and concession. Yet nowhere in his message does he reciprocate or return this spirit. Speaking of the assent or dissent which the clause requires, he says, ‘this iron rule is to give way to no circumstances—it is unbending and inflexible. It is the language of the master to the vassal. An unconditional answer is claimed forthwith.’ The ‘high privilege’ of a submission of the question, on the part of the state representatives, to their constituents, according to the message, is denied. He puts the cases of a popular branch of a state legislature, expressing its dissent ‘by a unanimous vote, and its resolution may be defeated by a tie vote in the senate,’ and ‘both branches of the legislature may concur in a resolution of decided dissent, and yet the governor may exert the veto power conferred on him by the state constitution, and their legislative action be defeated.’ ‘The state may afterwards protest against such unjust inference, but its authority is gone.’ The president continues: ‘to inferences so violent, and as they seem to me irrational. I cannot yield my consent. No court of justice would or could sanction them, without reversing all that is established in judicialproceeding, by introducing presumptions at variance with fact, and inferences at the expense of reason. A state in a condition of duresse would be presumed to speak as an individual, manacled and in prison, might be presumed to be in the enjoyment of freedom. Far better to say to the states, boldly and frankly, congress wills, and submission is demanded.’
Now, Mr. President, I will not ask whether these animadversions were prompted by a reciprocal spirit of amity and kindness, but I inquire whether all of them are perfectly just.
Beyond all question, those who believed in the constitutional right of congress to exercise the branching power within the states, unconditionally and without limitation, did make no small concession when they consented that it should be subjected to the restrictions specified in the compromise clause. They did not, it is true, concede every thing; they did not absolutely renounce the power to establish branches without the authority of the states, during the whole period of the existence of the charter; but they did agree that reasonable time should be allowed to the several states to determine whether they would or would not give their assent to the establishment of branches within their respective limits. They did not think it right to leave it an open question, for the space of twenty years; nor that a state should be permitted to grant to-day and revoke to-morrow its assent; nor that it should annex onerous or impracticable conditions to its assent, but that it should definitively decide the question, after the lapse of ample time for full deliberation. And what was that time? No state would have had less time than four months, and some of them from five to nine months, for consideration. Was it, therefore, entirely correct for the president to say, that an ‘unconditional answer is claimed forthwith?’ Forthwith means immediately, instantly, without delay, which cannot be affirmed of a space of time varying from four to nine months. And the president supposes, that the ‘high privilege’ of the members of the state legislature’s submitting the question to their constituents is denied? But could they not, at any time during that space, have consulted their constituents?
The president proceeds to put what I must, with the greatest deference and respect, consider as extreme cases. He supposes the popular branch to express its dissent by a unanimous vote, which is overruled by a tie in the senate. He supposes, that ‘both branches of the legislature may concur in a resolution of decided dissent, and yet the governor may exert the veto power.’ The unfortunate case of the state whose legislative will should be so checked by executive authority, would not be worse than that of the union, the will of whose legislature, in establishing this bank, is checked and controlled by the president.
But did it not occur to him, that extreme cases brought forward on the one side, might be met by the extreme cases suggested onthe other? Suppose the popular branch were to express its assent to the establishment of a branch bank, by a unanimous vote, which is overruled by an equal vote in the senate. Or suppose that both branches of the legislature, by majorities in each, exactly wanting one vote to make them two thirds, were to concur in a resolution inviting the introduction of a branch within the limits of the state, and the governor were to exercise the veto power, and defeat the resolution. Would it be very unreasonable, in these two cases, to infer the assent of the state to the establishment of a branch?
Extreme cases should never be resorted to. Happily for mankind, their affairs are but seldom affected or influenced by them, in consequence of the rarity of their occurrence.
The plain, simple, unvarnished statement of the case is this. Congress believes itself invested with constitutional power to authorize, unconditionally, the establishment of a bank of the United States and branches, any where in the United States, without asking any other consent of the states than that which is already expressed in the constitution. The president does not concur in the existence of that power, and was supposed to entertain an opinion, that the previous assent of the states was necessary. Here was an unfortunate conflict of opinion. Here was a case for compromise and mutual concession, if the difference could be reconciled. Congress advanced so far towards a compromise as to allow the states to express their assent or dissent, but then it thought that this should be done within some limited, but reasonable time; and it believed, since the bank and its branches were established for the benefit of twenty-six states, if the authorities of any one of them really could not make up their mind within that limited time, either to assent or dissent to the introduction of a branch, that it was not unreasonable, after the lapse of the appointed time, without any positive action, one way or the other, on the part of the state, to proceed as if it had assented. Now, if the power contended for by congress really exists, it must be admitted that here was a concession—a concession according to which an unconditional power is placed under temporary restrictions—a privilege offered to the states, which was not extended to them by either of the charters of the two former banks of the United States. And I am totally at a loss to comprehend how the president reached the conclusion, that it would have been ‘far better to say to the states, boldly and frankly, congress wills, and submission is demanded.’ Was it better for the states that the power of branching should be exerted without consulting them at all? Was it nothing to afford them an opportunity of saying whether they desired branches or not? How can it be believed, that a clause which qualifies, restricts, and limits the branching power, is more derogatory to the dignity, independence, and sovereignty of the states, than if it inexorably refused to the states any power whateverto deliberate and decide on the introduction of branches? Limited as the time was, and unconditionally as they were required to express themselves, still those states, (and that probably would have been the case with the greater number,) that chose to announce their assent or dissent, could do so, and get or prevent the introduction of a branch. But the president remarks, that ‘the state may express, after the most solemn form of legislation, its dissent, which may from time to time thereafter be repeated, in full view of its own interest, which can never be separated from the wise and beneficent operation of this government; and yet congress may, by virtue of the last proviso, overrule its law, and upon grounds which, to such state, will appear to rest on a constructive necessity and propriety, and nothing more.’
Even if the dissent of a state should be overruled, in the manner supposed by the president, how is the condition of that state worse than it would have been if the branching power had been absolutely and unconditionally asserted in the charter? There would have been, at least, the power of dissenting conceded, with a high degree of probability, that if the dissent were expressed, no branch would be introduced.
The last proviso to which the president refers is in these words: ‘and provided, nevertheless, that whenever it shall become necessary and proper for carrying into execution any of the powers granted by the constitution, to establish an office or offices in any of the states whatever, and the establishment thereof shall be directed by law, it shall be the duty of the said directors to establish such office or offices accordingly.’
This proviso was intended to reserve a power to congress to compel the bank to establish branches, if the establishment of them should be necessary to the great purposes of this government, notwithstanding the dissent of a state. If, for example, a state had once unconditionally dissented to the establishment of a branch, and afterwards assented, the bank could not have been compelled, without this reservation of power, to establish the branch, however urgent the wants of the treasury might be.
The president, I think, ought to have seen, in the form and language of the proviso, the spirit of conciliation in which it was drawn, as I know. It does not assert the power; it employs the language of the constitution itself, leaving every one free to interpret that language according to his own sense of the instrument.
Why was it deemed necessary to speak of its being ‘the language of the master to the vassal,’ of ‘this iron rule,’ that ‘congress wills, and submission is demanded?’ What is this whole federal government but a mass of powers abstracted from the sovereignty of the several states, and wielded by an organized government for their common defence and general welfare, according to the grants of the constitution? These powers are necessarily supreme; theconstitution, the acts of congress, and treaties being so declared by the express words of the constitution. Whenever, therefore, this government acts within the powers granted to it by the constitution, submission and obedience are due from all; from states as well as from persons. And if this present the image of a master and a vassal, of state subjection and congressional domination, it is the constitution, created or consented to by the states, that ordains these relations. Nor can it be said, in the contingency supposed, that an act of congress has repealed an act of state legislation. Undoubtedly in case of a conflict between a state constitution or state law, and the constitution of the United States, or an act of congress passed in pursuance of it, the state constitution or state law would yield. But it could not, at least, be formally or technically said, that the state constitution or law was repealed. Its operation would be suspended or abrogated by the necessary predominance of the paramount authority.
The president seems to have regarded as objectionable that provision in the clause which declares, that a branch being once established, it should not afterwards be withdrawn or removed without the previous consent of congress. That provision was intended to operate both upon the bank and the states. And, considering the changes and fluctuations in public sentiment in some of the states within the last few years, was the security against them to be found in that provision unreasonable? One legislature might invite a branch, which the next might attempt, by penal or other legislation, to drive away. We have had such examples heretofore, and I cannot think that it was unwise to profit by experience. Besides, an exactly similar provision was contained in the scheme of a bank which was reported by the secretary of the treasury, and to which it was understood the president had given his assent. But if I understand this message, that scheme could not have obtained his sanction, if congress had passed it without any alteration whatever. It authorized what is termed by the president local discount, and he does not believe the constitution confers upon congress power to establish a bank having that faculty. He says, indeed, ‘I regard the bill as asserting for congress the right to incorporate a United States bank, with power and right to establish offices of discount and deposit in the several states of this union, with or without their consent; a principle to which I have always heretofore been opposed, and which can never obtain my sanction.’ I pass with pleasure from this painful theme; deeply regretting that I have been constrained so long to dwell on it.
On a former occasion I stated, that in the event of an unfortunate difference of opinion between the legislative and executive departments, the point of difference might be developed, and it would be then seen whether they could be brought to coincide inany measure corresponding with the public hopes and expectations. I regret that the president has not, in this message, favored us with a more clear and explicit, exhibition of his views. It is sufficiently manifest that he is decidedly opposed to the establishment of a new bank of the United States formed after the two old models. I think it is fairly to be inferred, that the plan of the secretary of the treasury could not have received his sanction. He is opposed to the passage of the bill which he has returned; but whether he would give his approbation to any bank, and, if any, what sort of a bank, is not absolutely clear. I think it may be collected from the message, with the aid or information derived through other sources, that the president would concur in the establishment of a bank whose operations should be limited to dealing in bills of exchange, to deposits, and to the supply of a circulation, excluding the power of discounting promissory notes. And I understand that some of our friends are now considering the practicability of arranging and passing a bill in conformity with the views of president Tyler? Whilst I regret that I can take no active part in such an experiment, and must reserve to myself the right of determining, whether I can or cannot vote for such a bill after I see it in its matured form, I assure my friends that they shall find no obstacle or impediment in me. On the contrary, I say to them, go on: God speed you in any measure which will serve the country, and preserve or restore harmony and concert between the departments of government. An executive veto of a bank of the United States, after the sad experience of late years, is an event which was not anticipated by the political friends of the president; certainly not by me. But it has come upon us with tremendous weight, and amidst the greatest excitement within and without the metropolis. The question now is, what shall be done? What, under this most embarrassing and unexpected state of things, will our constituents expect of us? What is required by the duty and the dignity of congress? I repeat, that if, after a careful examination of the executive message, a bank can be devised which will afford any remedy to existing evils, and secure the president’s approbation, let the project of such a bank be presented. It shall encounter no opposition, if it should receive no support, from me.
But what further shall we do? Never, since I have enjoyed the honor of participating in the public councils of the nation, a period now of nearly thirty-five years, have I met congress under more happy or more favorable auspices. Never have I seen a house of representatives animated by more patriotic dispositions; more united, more determined, more business-like. Not even that house which declared war in 1812, nor that which, in 1815–16, laid broad and deep foundations of national prosperity, in adequate provisions for a sound currency, by the establishment of a bank of the United States, for the payment of the nationaldebt, and for the protection of American industry. This house has solved the problem of the competency of a large deliberative body to transact the public business. If happily there had existed a concurrence of opinion and cordial coöperation between the different departments of the government, and all the members of the party, we should have carried every measure contemplated at the extra session, which the people had a right to expect from our pledges, and should have been, by this time, at our respective homes. We are disappointed in one, and an important one, of that series of measures; but shall we therefore despair? Shall we abandon ourselves to unworthy feelings and sentiments? Shall we allow ourselves to be transported by rash and intemperate passions and counsels? Shall we adjourn, and go home in disgust? No! No! No! A higher, nobler, and more patriotic career lies before us. Let us here, at the east end of Pennsylvania avenue, do our duty, our whole duty, and nothing short of our duty, towards our common country. We have repealed the sub-treasury. We have passed a bankrupt law—a beneficent measure of substantial and extensive relief. Let us now pass the bill for the distribution of the proceeds of the public lands, the revenue-bill, and the bill for the benefit of the oppressed people of this district. Let us do all, let us do every thing we can for the public good. If we are finally to be disappointed in our hopes of giving to the country a bank, which will once more supply it with a sound currency, still let us go home and tell our constituents, that we did all that we could under actual circumstances; and that, if we did not carry every measure for their relief, it was only because to do so was impossible. If nothing can be done at this extra session, to put upon a more stable and satisfactory basis the currency and exchanges of the country, let us hope that hereafter some way will be found to accomplish that most desirable object, either by an amendment of the constitution, limiting and qualifying the enormous executive power, and especially the veto, or by increased majorities in the two houses of congress, competent to the passage of wise and salutary laws, the president’s objections notwithstanding.
This seems to me to be the course now incumbent upon us to pursue; and by conforming to it, whatever may be the result of laudable endeavors, now in progress or in contemplation in relation to a new attempt to establish a bank, we shall go home bearing no self-reproaches for neglected or abandoned duty.