Mr. Webster felt himself called upon to answer these objections, and did so in a way to intimate that the committee were not "green" enough,—that is to say, were too wise—to propose any legislative action on the part of Congress in relation to this removal. He said:
"There is another thing, sir, to which the gentleman has objected. He would have preferred that some legislative recommendation should have accompanied the report—that some law, or joint resolution, should have been recommended. Sir, do we not see what the gentleman probably desires? If not, we must be green politicians. It was not my intention, at this stage of the business, to propose any law, or joint resolution. I do not, at present, know the opinions of the committee on this subject. On this question, at least, to use the gentleman's expression, I do not carry their opinions in my coat pocket. The question, when it arrives, will be a very grave one—one of deep and solemn import—and when the proper time for its discussion arrives, the gentleman from Georgia will have an opportunity to examine it. The first thing is, to ascertain the judgment of the Senate, on the Secretary's reasons for his act."
The meaning of Mr. Webster in this reply—this intimation that the finance committee had got out of the sap, and were no longer "green"—was a declaration that any legislative measure they might have recommended, would have been rejected in the House of Representatives, and so lost its efficacy as a senatorial opinion; and to avoid that rejection, and save the effect of the Senate's opinion, it must be a single and not a joint resolution; and so confined to the Senate alone. The reply of Mr. Webster was certainly candid, but unparliamentary, and at war with all ideas of legislation, thus to refuse to propose a legislative enactment because it would be negatived in the other branch of the national legislature. Finally, the resolution was adopted, and by a vote of 28 to 18; thus:
"Yeas.—Messrs. Bibb, Black, Calhoun, Clay, Clayton, Ewing, Frelinghuysen, Hendricks, Kent, King of Georgia, Knight, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Preston, Robbins, Silsbee, Smith, Southard, Sprague, Swift, Tomlinson, Tyler, Waggaman, Webster.
"Nays.—Messrs. Benton, Brown, Forsyth, Grundy, Hill, Kane, King of Alabama, Linn, McKean, Moore, Robinson, Shepley, Tallmadge, Tipton, White, Wilkins, Wright."
The futility of this resolve was made manifest soon after its passage. It was nugatory, and remained naked. It required nothing to be done, and nothing was done under it. It became ridiculous. And eventually, and near the end of the session, Mr. Clay proposed it over again, with another resolve attached, directing the return of the deposits to the Bank of the United States; and making it joint, so as to require the consent of both houses, and thus lead to legislative action. In submitting his resolution in this new form he took occasion to allude to their fate in the other branch of the legislature, where rejection was certain, and to intimate censure upon the President for not conforming to the opinion of the Senate in its resolves; as if the adverse opinion of the House (from its recent election, its superior numbers, and its particular charge of the revenue), was not more than a counterpoise to the opinion of the Senate. In this sense, he stood up, and said:
"Whatever might be the fate of these resolutions at the other end of the capitol, or in another building, that consideration ought to have no influence on the course of this body. The Senate owed it to its own character, and to the country, to proceed in the discharge of its duties, and to leave it to others, whether at the other end of the capitol or in another building, to perform their own obligations to the country, according to their own sense of their duty, and their own convictions of responsibility. To them it ought to be left to determine what was their duty, and to discharge that duty as they might think best. For himself, he should be ashamed to return to his constituents without having made every lawful effort in his power to cause the restoration of the public deposits to the United States Bank. While a chance yet remained of effecting the restoration of the reign of the constitution and the laws, he felt that he should not have discharged this duty if he failed to make every effort to accomplish that desirable object.
"The Senate, after passing the resolution which they had already passed, and waiting two months to see whether the Executive would conform his course to the views expressed by this branch of the legislature; after waiting all this time, and perceiving that the error, as the Senate had declared it to be, was still persevered in, and seeing the wide and rapid sweep of ruin over every section of the country, there was still one measure left which might arrest the evil, and that was in the offering of these resolutions—to present them to this body; and, if they passed here, to send them to the other House; and, should they pass them, to present to the President the plain question, if he will return to the constitutional track; or, in opposition to the expressed will of the legislature, retain the control over the millions of public money which are already deposited in the local banks, and which are still coming in there."
Mr. Benton replied to Mr. Clay, showing the propriety of these resolutions if offered at the commencement of the session—their inutility now, so near its end; and the indelicacy in the Senate, in throwing itself between the bank and the House of Representatives, at a moment when the bank directors were standing out in contempt against the House, refusing to be examined by its committee, and a motion actually depending to punish them for this contempt. For this was then the actual condition of the corporation; and, for the Senate to pass a resolution to restore the deposits in these circumstances, was to take the part of the bank against the House—to justify its contumacy—and to express an opinion in favor of its re-charter; as all admitted that restoration of the deposits was wrong unless a re-charter was granted. Mr. B. said:
"He deemed the present moment to be the most objectionable time that could have been selected for proposing to restore the public deposits to the United States Bank. Such a proposition might have been a proper proceeding at the commencement of the session. A joint resolution, at that time, would have been the proper mode; it could have been followed by action; and, if constitutionally passed, would have compelled the restoration of these deposits. But the course was different. A separate resolution was brought in, and passed the Senate; and there it stopped. It was a nugatory resolution, leading to no action. It was such a one as a State legislature, or a public meeting, might adopt, because they had no power to legislate on the subject. But the Senate had the power of legislation; and, six months ago, when the separate resolution was brought in, the Senate, if it intended to act legislatively on the subject at all, ought to have proceeded by joint resolution, or by bill, at that time. But it thought otherwise. The separate resolution was adopted; after adoption, no instruction was given to a committee to bring in a bill; nothing was done to give legislative effect to the decision of the Senate; and now, at the end of six months, the first attempt is made to move in our legislative capacity, and to pass a joint resolution—equivalent to a statute—to compel the restoration of these deposits. This is the state of the proceeding; and, Mr. B. must be permitted to say, and to give his reasons for saying, that the time selected for this first step, in our legislative capacity, in a case so long depending, is most inappropriate and objectionable. Mr. B. would not dwell upon the palpable objections to this proceeding, which must strike every mind. The advanced stage of the session—the propositions to adjourn—the quantity of business on hand—the little probability that the House and the President would concur with the Senate, or that two thirds of the two Houses could be brought to pass the resolution, if the President declined to give it his approbation. These palpable objections must strike every mind and make it appear to be a useless consumption of time for the Senate to pass the resolution.
"Virtually, it included a proposition to re-charter the bank; for the most confidential friends of that institution admitted that it was improper to restore the deposits, unless the bank charter was to be continued. The proposition to restore them, virtually included the proposition to re-charter; and that was a proposition which, after having been openly made on this floor, and leave asked to bring in a bill to that effect, had been abandoned, under the clear conviction that the measure could not pass. Passing from these palpable objections, Mr. B. proceeded to state another reason, of a different kind, and which he held to be imperative of the course which the Senate should now pursue: he alluded to the state of the questions at this moment depending between the Bank of the United States and the House of Representatives, and the nature of which exacted from the Senate the observance of a strict neutrality, and an absolute non-interference between those two bodies. The House of Representatives had ordered an inquiry into the affairs and conduct of the bank. The points of inquiry indicated misconduct of the gravest import, and had been ordered by the largest majority, not less than three or four to one. That inquiry was not yet finished; it was still depending; the committee appointed to conduct it remains organized, and has only reported in part. That report is before the Senate and the public; and shows that the directors of the Bank of the United States have resisted the authority of the House—have made an issue of power between itself and the House—for the trial of which issue a resolution is now depending in the House, and is made the order of the day for Tuesday next.
"Here, then, are two questions depending between the House and the bank; the first, an inquiry into the misconduct of the bank; the second, a proposition to compel the bank to submit to the authority of the House. Was it right for the Senate to interpose between those bodies, while these questions were depending? Was it right to interfere on the part of the bank? Was it right for the Senate to leap into the arena, throw itself between the contending parties, take sides with the bank, and virtually declare to the American people that there was no cause for inquiry into the conduct of the bank, and no ground of censure for resisting the authority of the House? Such would, doubtless, be the effect of the conduct of the Senate, if it should entertain the proposition which is now submitted to it. That proposition is one of honor and confidence to the bank. It proceeds upon the assumption that the bank is right, and the House is wrong, in the questions now depending between them; that the bank has done nothing to merit inquiry, or to deserve censure; and that the public moneys ought to be restored to her keeping, without waiting the end of the investigation which the House has ordered, or the decision of the resolution which affirms that the bank has resisted the authority of the House, and committed a contempt against it. This is the full and fair interpretation—the clear and speaking effect—of the measure now proposed to the Senate. Is it right to treat the House thus? Will the Senate, virtually, intelligibly, and practically, acquit the bank, when the bank will not acquit itself?—will not suffer its innocence to be tested by the recorded voice of its own books, and the living voice of its own directors? These directors have refused to testify; they have refused to be sworn; they have refused to touch the book; because, being directors and corporators, and therefore parties, they cannot be required to give evidence against themselves. And this refusal, the public is gravely told, is made upon the advice of eminent counsel. What counsel? The counsel of the law, or of fear? Certainly, no lawyer—not even a junior apprentice to the law—could give such advice. The right to stand mute, does not extend to the privilege of refusing to be sworn. The right does not attach until after the oath is taken, and is then limited to the specific question, the answer to which might inculpate the witness, and which he may refuse to answer, because he will say, upon his oath, that the answer will criminate himself. But these bank directors refuse to be sworn at all. They refuse to touch the book; and, in that refusal, commit a flagrant contempt against the House of Representatives, and do an act for which any citizen would be sent to jail by any justice of the peace, in America. And is the Senate to justify the directors for this contempt? to get between them and the House? to adopt a resolution beforehand—before the day fixed for the decision of the contempt, which shall throw the weight of the Senate into the scale of the directors against the House, and virtually declare that they are right in refusing to be sworn?"
The resolutions were, nevertheless, adopted, and by the fixed majority of twenty-eight to eighteen, and sent to the House of Representatives for concurrence, where they met the fate which all knew they were to receive. The House did not even take them up for consideration, but continued the course which it had began at the commencement of the session; and which was in exact conformity to the legislative course, and exactly contrary to the course of the Senate. The report of the Secretary of the Treasury, the memorial of the bank, and that of the government directors, were all referred to the Committee of Ways and Means; and by that committee a report was made, by their chairman, Mr. Polk, sustaining the action of the Secretary, and concluding with the four following resolutions:
"1. Resolved, That the Bank of the United States ought not to be re-chartered.
"2. Resolved, That the public deposits ought not to be restored to the Bank of the United States.
"3. Resolved, That the State banks ought to be continued as the places of deposit of the public money, and that it is expedient for Congress to make further provision by law, prescribing the mode of selection, the securities to be taken, and the manner and terms on which they are to be employed.
"4. Resolved, That, for the purpose of ascertaining, as far as practicable, the cause of the commercial embarrassment and distress complained of by numerous citizens of the United States, in sundry memorials which have been presented to Congress at the present session, and of inquiring whether the charter of the Bank of the United States has been violated; and, also, what corruptions and abuses have existed in its management; whether it has used its corporate power or money to control the press, to interfere in politics, or influence elections; and whether it has had any agency, through its management or money, in producing the existing pressure; a select committee be appointed to inspect the books and examine into the proceedings of the said bank, who shall report whether the provisions of the charter have been violated or not; and, also, what abuses, corruptions, or malpractices have existed in the management of said bank; and that the said committee be authorized to send for persons and papers, and to summon and examine witnesses, on oath, and to examine into the affairs of the said bank and branches; and they are further authorized to visit the principal bank, or any of its branches, for the purpose of inspecting the books, correspondence, accounts, and other papers connected with its management or business; and that the said committee be required to report the result of such investigation, together with the evidence they may take, at as early a day as practicable."