The Great Speeches and Orations of Daniel Webster / With an Essay on Daniel Webster as a Master of English Style

by Daniel Webster; Edwin Percy Whipple

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!