A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

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.