Mr. B. said, as he had referred to the speech which he had made in the House of Representatives on this subject, nearly twenty years ago, he felt bound to acknowledge that, upon one point, he had fallen into a then prevailing error. Of this he had been fully convinced by the debate in the Senate at the last session. In 1822, it was his opinion that the constitutional power of Congress was confined to traders, or that class of persons which were embraced by the bankrupt laws of England at the time of the adoption of the Federal Constitution. This he now believed was too narrow a construction. The Constitution declared that “Congress shall have power to establish uniform laws on the subject of bankruptcies, throughout the United States.” The subject of bankruptcies was thus placed generally under our control; and wherever bankruptcy existed, no matter what might have been the pursuits of the bankrupt, whether he had been a trader or not, our power extended over him. It also, in his opinion, embraced artificial as well as natural persons. Was it not absurd to say, that an individual manufacturer on one side of the street at Lowell might be subjected to the compulsory operation of a bankrupt law; whilst two or three individual manufacturers on the other side of the same street, who had obtained a charter of incorporation from the legislature of Massachusetts, could thus withdraw themselves in their corporate capacity from the power conferred upon Congress over bankruptcies? He, therefore, entertained no doubt of the power of Congress to pass a compulsory bankrupt law against banks. If it could not pass such a law, a firm of individual bankers would be embraced by our power; but if these very individuals obtained a charter of incorporation, they might then place that power at defiance. He entertained as little doubt of the policy of such a law as applied to banks. The knowledge of its existence would of itself, in almost every instance, prevent the necessity of its application. Banks, then, in order to save themselves from destruction, would take care to conduct their business in such a manner as always to be able to pay their liabilities in specie. He indulged no hope of a permanently sound convertible paper currency except what arose from the power of Congress to subject banks to a bankrupt law. This was the only practicable method which could be devised of securing to the people this great blessing.
Mr. B. thought it might be shown that this bill was deficient in its details. He would now only refer to one particular. It dispensed with the use of commissioners of bankruptcy altogether. In this respect it was a departure from the English statute of bankruptcy, and from our own act of 1800. Now whilst he admitted that compulsory bankruptcy would rarely occur under this bill, unless it might be to gratify the malignity of a severe creditor; yet he asked the chairman of the committee (Mr. Berrien) to say what would become of the debtor’s property between the time which would intervene between filing the petition against him by the creditor, and the final decree of the court declaring him a bankrupt. The debtor might require a trial by jury before the court to ascertain the fact whether or not he had committed an act of bankruptcy. This trial might, and probably would, often be delayed for years, whilst it ought to proceed immediately. What was to become of the debtor’s property in the mean time, without commissioners? Was he to be left to squander it at pleasure? On the other hand, if the petitioning creditor should proceed without sufficient cause, the act of 1800 gave the debtor a remedy against him. He was bound, before the commission was sued out, to give bond, with such surety as the court might direct, conditioned that the obligor should prove the debtor to be a bankrupt. In case of failure, the debtor had his remedy on the bond to the amount of the injury he might have sustained, in case the condition of it had been violated. Surely this was no more than justice. After the debtor had been arrested in the pursuit of his business by a charge of bankruptcy—after his prospects in life had been blasted—after his credit had been destroyed—and after he had been pursued for years in a course of litigation which eventually terminated in his favor, justice required that he should have some remedy. He asked, therefore, why these provisions of the act of 1800 had been left out of the present bill?
It had been contended that as the Constitution had conferred upon Congress the power to pass a bankrupt law, it was therefore their duty to exercise this power. But power was one thing and duty another. The language of power was that you may—of duty that you must. The Constitution had also conferred upon Congress the power of declaring war, of imposing taxes, and of raising and supporting armies; but would any Senator contend that it was our duty to give life and energy to these powers by calling them into action, unless the interest or honor of the country demanded it at our hands? These sovereign powers were to be exercised or not, according to the dictates of a sound discretion; and we were under no obligation whatever to pass a bankrupt law, unless we believed that under all the circumstances of the country, such a law would promote the best interests of the people.
Upon the whole, he could declare that such was his sympathy for these unfortunate debtors, that he had never given a vote in his life more disagreeable to his feelings than the vote which he should be compelled to give upon the present occasion. He was convinced, however, that the bill, in its effects, would prove disastrous to the people; and, therefore, although reluctantly, he should record his vote against its passage.
At the session which commenced in December, 1841, a measure in which President Tyler and his cabinet had united was recommended to Congress. It proposed the establishment of an “Exchequer Board,” to consist of certain Government officers and other commissioners, with branch agencies in the different States. As it never took effect, it is only needful to refer to Mr. Buchanan’s description of it in a speech made on the 29th of December, from which it appears that he regarded it as only another form of a Government bank. He professed his readiness to concur with the President in any unobjectionable measure confined to the collection, safe-keeping, and disbursement of the public money, “in the hope that, after all experiments should have been tried, and reason should have time to prevail, the people and the Government would at length return to and re-establish the Independent Treasury.”[[69]] But as the Senate continued to be occupied through the winter of 1841–2 with the discussion of these subjects of finance, Mr. Clay kept on in his bitter criticisms of the President’s “vetoes” of bills which had been passed by those who had, as he claimed, bestowed on Mr. Tyler the office that had made him the successor of General Harrison. Mr. Clay went so far as to propose a joint resolution for an amendment of the Constitution, so as to require but a bare majority of all the members of each house to pass any bill into a law, notwithstanding the objections of the President. That he really expected to bring about such a change in the fundamental rule which had alone made the President’s negative of any practical value, may be doubtful. He was then looking for a nomination to the Presidency by the next national convention of the Whigs, and this proposal to curtail the “veto” power would probably be, under the circumstances of the times, a popular topic on which to make his canvass against the Democratic party. It is, perhaps, to be regretted that Mr. Webster was not in the Senate at this time; but as he was not, it is fortunate that Mr. Buchanan was.[[70]] Notwithstanding the many differences of opinion between these two statesmen, on the scope of the legislative powers of Congress, I regard it as certain that they would not have differed in their views of the fundamental purpose of the Constitution in requiring two-thirds of each House to pass a bill over the President’s objections. Great and eminent as were Mr. Webster’s powers of understanding and enforcing the principles of the Constitution, and commanding as was his reputation, Mr. Buchanan was an equally conscientious and careful student of that instrument, and equally faithful to its great purposes. His speech on the veto power, in reply to Mr. Clay, delivered on the 2d of February, 1842, may be ranked very high as an exposition of one of the most important parts of our political system. There is a good deal in it of the temporary and party controversies of that period; and there is also a great deal of sound and comprehensive reasoning, valuable now and hereafter.
Mr. President: I am now sorry that I ever committed myself to make a speech upon this subject. I assure you that it has become extremely cold; and I think I never shall again pledge myself to address the Senate at the end of a week or ten days, to be occupied in the discussion of an intervening and different question. Cold as the subject had become, it is now still colder, after having waited for an hour to hear a debate on the mere reference of a memorial to the Committee on Commerce. But although the subject may have lost its freshness to my mind, and I may not be able to reply to the Senator from Kentucky (Mr. Clay) with as much effect as if the discussion on the bankrupt bill had not intervened, yet it has lost none of its intrinsic importance.
Before I commence the discussion, however, let me clearly and distinctly state the question to be decided by the Senate.
Under the Constitution of the United States, as it now exists—
“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But, in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill, shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.”
The same constitutional rule is applicable to “every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary, except on a question of adjournment.”