Thirty Years' View (Vol. I of 2)

The President objected to the constitutionality of the bank, and argued against the force of precedents in this case, and against the applicability and the decision of the Supreme Court in its favor. That decision was in the case of the Maryland branch, and sustained it upon an argument which carries error, in point of fact, upon its face. The ground of the decision was, that the bank was "necessary" to the successful conducting of the "fiscal operations" of the government; and that Congress was the judge of that necessity. Upon this ground the Maryland branch, and every branch except the one in the District of Columbia, was without the constitutional warrant which the court required. Congress had given no judgment in favor of its necessity – but the contrary – a judgment against it: for after providing for the mother bank at Philadelphia, and one branch at Washington City, the establishment of all other branches was referred to the judgment of the bank itself, or to circumstances over which Congress had no control, as the request of a State legislature founded upon a subscription of 2000 shares within the State – with a dispensation in favor of substituting local banks in places where the Secretary of the Treasury, and the directors of the national bank should agree. All this was contained in the fourteenth fundamental article of the constitution of the corporation – which says:

"The directors of said corporation shall establish a competent office of discount and deposit in the District of Columbia, whenever any law of the United States shall require such an establishment: also one such office of discount and deposit in any State in which two thousand shares shall have been subscribed or may be held, whenever, upon application of the legislature of such State, Congress may, by law, require the same: Provided, the directors aforesaid shall not be bound to establish such office before the whole of the capital of the bank shall be paid up. And it shall be lawful for the directors of the corporation to establish offices of discount and deposit where they think fit, within the United States or the territories thereof, and to commit the management of the said, and the business thereof, respectively to such persons, and under such regulations, as they shall deem proper, not being contrary to the laws or the constitution of the bank. Or, instead of establishing such offices, it shall be lawful for the directors of the said corporation, from time to time, to employ any other bank or banks, to be first approved by the Secretary of the Treasury, at any place or places that they may deem safe and proper, to manage and transact the business proposed aforesaid, other than for the purposes of discount; to be managed and transacted by such offices, under such agreements, and subject to such regulations as they shall deem just and proper."

These are the words of the fourteenth fundamental article of the constitution of the bank, and the conduct of the corporation in establishing its branches was in accordance with this article. They placed them where they pleased – at first, governed wholly by the question of profit and loss to itself – afterwards, and when it was seen that the renewed charter was to be resisted by the members from some States, governed by the political consideration of creating an interest to defeat the election, or control the action of the dissenting members. Thus it was in my own case. A branch in St. Louis was refused to the application of the business community – established afterwards to govern me. And thus, it is seen the Supreme Court was in error – that the judgment of Congress in favor of the "necessity" of branches only extended to one in the District of Columbia; and as for the bank itself, the argument in its favor and upon which the Supreme Court made its decision, was an argument which made the constitutionality of a measure dependent, not upon the words of the constitution, but upon the opinion of Congress for the time being upon the question of the "necessity" of a particular measure – a question subject to receive different decisions from Congress at different times – which actually received different decisions in 1791, 1811, and 1816: and, we may now add the decision of experience since 1836 – during which term we have had no national bank; and the fiscal business of the government, as well as the commercial and trading business of the country, has been carried on with a degree of success never equalled in the time of the existence of the national bank. I, therefore, believe that the President was well warranted in challenging both the validity of the decision of the Supreme Court, and the obligatory force of precedents: which he did, as follows:

"It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedence is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we report to the States, the expressions of legislative, judicial, and executive opinions against the bank have been, probably, to those in its favor, as four to one. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the Executive, and the court, must each for itself be guided by its own opinion of the constitution. Each public officer who takes an oath to support the constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress, or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

"But in the case relied upon, the Supreme Court have not decided that all the features of this corporation are compatible with the constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress. But taking into view the whole opinion of the court, and the reasoning by which they have come to that conclusion, I understand them to have decided that, inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the general government, therefore the law incorporating it is in accordance with that provision of the constitution which declares that Congress shall have power 'to make all laws which shall be necessary and proper for carrying those powers into execution.' Having satisfied themselves that the word 'necessary,' in the constitution, means 'needful,' 'requisite,' 'essential,' 'conducive to,' and that 'a bank' is a convenient, a useful, and essential instrument in the prosecution of the government's 'fiscal operations,' they conclude that to 'use one must be within the discretion of Congress;' and that 'the act to incorporate the Bank of the United States, is a law made in pursuance of the constitution.' 'But,' say they, 'where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.'

"The principle, here affirmed, is, that the 'degree of its necessity,' involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional; but it is the province of the legislature to determine whether this or that particular power, privilege, or exemption, is 'necessary and proper' to enable the bank to discharge its duties to the government; and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are 'necessary and proper,' in order to enable the bank to perform, conveniently and efficiently, the public duties assigned to it as a fiscal agent, and therefore constitutional; or unnecessary and improper, and therefore unconstitutional."

With regard to the misconduct of the institution, both in conducting its business and in resisting investigation, the message spoke the general sentiment of the disinterested country when it said:

"Suspicions are entertained, and charges are made, of gross abuses and violations of its charter. An investigation unwillingly conceded, and so restricted in time as necessarily to make it incomplete and unsatisfactory, discloses enough to excite suspicion and alarm. In the practices of the principal bank, partially unveiled in the absence of important witnesses, and in numerous charges confidently made, and as yet wholly uninvestigated, there was enough to induce a majority of the committee of investigation, a committee which was selected from the most able and honorable members of the House of Representatives, to recommend a suspension of further action upon the bill, and a prosecution of the inquiry. As the charter had yet four years to run, and as a renewal now was not necessary to the successful prosecution of its business, it was to have been expected that the bank itself, conscious of its purity, and proud of its character, would have withdrawn its application for the present, and demanded the severest scrutiny into all its transactions. In their declining to do so, there seems to be an additional reason why the functionaries of the government should proceed with less haste, and more caution, in the renewal of their monopoly."

The appearance of the veto message was the signal for the delivery of the great speeches of the advocates of the bank. Thus far they had held back, refraining from general debate, and limiting themselves to brief answers to current objections. Now they came forth in all their strength, in speeches elaborate and studied, and covering the whole ground of constitutionality and expediency; and delivered with unusual warmth and vehemence. Mr. Webster, Mr. Clay, Mr. Clayton of Delaware, and Mr. Ewing of Ohio, thus entered the lists for the bank. And why these speeches, at this time, when it was certain that speaking would have no effect in overcoming the veto – that the constitutional majority of two thirds of each House to carry it, so far from being attainable, would but little exceed a bare majority? The reason was told by the speakers themselves – fully told, as an appeal to the people – as a transfer of the question to the political arena – to the election fields, and especially to the presidential election, then impending, and within four months of its consummation – and a refusal on the part of the corporation to submit to the decision of the constituted authorities. This was plainly told by Mr. Webster in the opening of his argument; frightful distress was predicted: and the change of the chief magistrate was presented as the only means of averting an immense calamity on one hand, or of securing an immense benefit on the other. He said:

"It is now certain that, without a change in our public councils, this bank will not be continued, nor will any other be established, which, according to the general sense and language of mankind, can be entitled to the name. In three years and nine months from the present moment, the charter of the bank expires; within that period, therefore, it must wind up its concerns. It must call in its debts, withdraw its bills from circulation, and cease from all its ordinary operations. All this is to be done in three years and nine months; because, although there is a provision in the charter rendering it lawful to use the corporate name for two years after the expiration of the charter, yet this is allowed only for the purpose of suits, and for the sale of the estate belonging to the bank, and for no other purpose whatever. The whole active business of the bank, its custody of public deposits, its transfers of public moneys, its dealing in exchange, all its loans and discounts, and all its issues of bills for circulation, must cease and determine on or before the 3d day of March, 1836; and, within the same period, its debts must be collected, as no new contract can be made with it, as a corporation, for the renewal of loans, or discount of notes or bills, after that time."

Mr. Senator White of Tennessee, seizing upon this open entrance into the political arena by the bank, thanked Mr. Webster for his candor, and summoned the people to the combat of the great moneyed power, now openly at the head of a great political party, and carrying the fortunes of that party in the question of its own continued existence. He said:

"I thank the senator for the candid avowal that unless the President will sign such a charter as will suit the directors, they intend to interfere in the election, and endeavor to displace him. With the same candor I state that, after this declaration, this charter shall never be renewed with my consent.

"Let us look at this matter as it is. Immediately before the election, the directors apply for a charter, which they think the President at any other time will not sign, for the express purpose of compelling him to sign contrary to his judgment, or of encountering all their hostility in the canvass, and at the polls. Suppose this attempt to have succeeded, and the President, through fear of his election, had signed this charter, although he conscientiously believes it will be destructive of the liberty of the people who have elected him to preside over them, and preserve their liberties, so far as in his power. What next? Why, whenever the charter is likely to expire hereafter, they will come, as they do now, on the eve of the election, and compel the chief magistrate to sign such a charter as they may dictate, on pain of being turned out and disgraced. Would it not be far better to gratify this moneyed aristocracy, to the whole extent at once, and renew their charter for ever? The temptation to a periodical interference in our elections would then be taken away.

"Sir, if, under these circumstances, the charter is renewed, the elective franchise is destroyed, and the liberties and prosperity of the people are delivered over to this moneyed institution, to be disposed of at their discretion. Against this I enter my solemn protest."

The distress to be brought upon the country by the sudden winding up of the bank, the sudden calling in of all its debts, the sudden withdrawal of all its capital, was pathetically dwelt upon by all the speakers, and the alarming picture thus presented by Mr. Clayton:

"I ask, what is to be done for the country? All thinking men must now admit that, as the present bank must close its concerns in less than four years, the pecuniary distress, the commercial embarrassments, consequent upon its destruction, must exceed any thing which has ever been known in our history, unless some other bank can be established to relieve us. Eight and a half millions of the bank capital, belonging to foreigners, must be drawn from us to Europe. Seven millions of the capital must be paid to the government, not to be loaned again, but to remain, as the President proposes, deposited in a branch of the treasury, to check the issues of the local banks. The immense available resources of the present institution, amounting, as appears by the report in the other House, to $82,057,483, are to be used for banking no longer, and nearly fifty millions of dollars in notes discounted, on personal and other security, must be paid to the bank. The State banks must pay over all their debts to the expiring institution, and curtail their discounts to do so, or resort, for the relief of their debtors, to the old plan of emitting more paper, to be bought up by speculators at a heavy discount."

This was an alarming picture to present, and especially as the corporation had it in its power to create the distress which it foretold – a consummation frightfully realized three years later – but a picture equally unjustifiable and gratuitous. Two years was the extent of the time, after the expiration of its charter, that the corporation had accepted in its charter for winding up its business; and there were now four years to run before these two years would commence. The section 21, of the charter, provided for the contingency thus:

"And notwithstanding the expiration of the term for which the said corporation is created, it shall be lawful to use the corporate name, style and capacity, for the purpose of suits for the final settlement and liquidation of the affairs and accounts of the corporation, and for the sale and disposition of their estate real, personal and mixed: but not for any other purpose, or in any other manner whatever, nor for a period exceeding two years after the expiration of said term of incorporation."

Besides the two years given to the institution after the expiration of its charter, it was perfectly well known, and has since been done in its own case, and was done by the first national bank, and may be by any expiring corporation, that the directors may appoint trustees to wind up their concerns; and who will not be subject to any limited time. The first national bank – that which was created in 1791, and expired in 1811 – had no two years, or any time whatever, allowed for winding up its affairs after the expiration of its charter – and the question of the renewal was not decided until within the last days of the existence of its charter – yet there was no distress, and no pressure upon its debtors. A trust was created; and the collection of debts conducted so gently that it is not yet finished. The trustees are still at work: and within this year, and while this application for a renewed charter to the second bank is going on, they announce a dividend of some cents on the share out of the last annual collections; and intimate no time within which they will finish; so that this menace of distress from the second bank, if denied a renewal four years before the expiration of its charter, and four years before the commencement of the two years to which it is entitled, was entirely gratuitous, and would have been wicked if executed.

Mr. Clay concluded the debate on the side of the bank application, and spoke with great ardor and vehemence, and with much latitude of style and topic – though as a rival candidate for the Presidency, it was considered by some, that a greater degree of reserve might have been commendable. The veto, and its imputed undue exercise, was the theme of his vehement declamation. Besides discrediting its use, and denouncing it as of monarchial origin, he alluded to the popular odium brought upon Louis the 16th by its exercise, and the nickname which it caused to be fastened upon him. He said:

"The veto is hardly reconcilable with the genius of representative government. It is totally irreconcilable with it, if it is to be frequently employed in respect to the expediency of measures, as well as their constitutionality. It is a feature of our government borrowed from a prerogative of the British King. And it is remarkable that in England it has grown obsolete, not having been used for upwards of a century. At the commencement of the French Revolution, in discussing the principles of their constitution, in the national convention, the veto held a conspicuous figure. The gay, laughing population of Paris bestowed on the King the appellation of Monsieur Veto, and on the Queen that of Madame Veto."

Mr. Benton saw the advantage which this denunciation and allusion presented, and made relentless use of it. He first vindicated the use and origin of the veto, as derived from the institution of the tribunes of the people among the Romans, and its exercise always intended for the benefit of the people; and, under our constitution, its only effect to refer a measure to the people, for their consideration, and to stay its execution until the people could pass upon it, and to adopt or reject it at an ensuing Congress. It was a power eminently just and proper in a representative government, and intended for the benefit of the whole people; and, therefore, placed in the hands of the magistrate elected by the whole. On the allusion to the nickname on the King and Queen of France, he said:

"He not only recollected the historical incident to which the senator from Kentucky had alluded, but also the character of the decrees to which the unfortunate Louis the 16th had affixed his vetoes. One was the decree against the emigrants, dooming to death and confiscation of estate every man, woman, and child who should attempt to save their lives by flying from the pike, the guillotine, and the lamp-post. The other was a decree exposing to death the ministers of religion who could not take an oath which their consciences repulsed. To save tottering age, trembling mothers, and affrighted children from massacre – to save the temples and altars of God from being stained by the blood of his ministers – were the sacred objects of those vetoes; and was there any thing to justify a light or reproachful allusion to them in the American Senate? The King put his constitutional vetoes to these decrees; and the canaille of Saint Antoine and Marceau – not the gay and laughing Parisians, but the bloody canaille, instigated by leaders more ferocious than themselves – began to salute the King as Monsieur Veto, and demand his head for the guillotine. And the Queen, when seen at the windows of her prison, her locks pale with premature white, the effect of an agonized mind at the ruin she witnessed, the poissardes saluted her also as Madame Veto; and the Dauphin came in for the epithet of the Little Veto. All this was terrible in France, and in the disorders of a revolution; but why revive their remembrance in this Congress, successor to those which were accustomed to call this king our great ally? and to compliment him on the birth of that child, stigmatized le petit veto, and perishing prematurely under the inhumanities of the convention inflicted by the hand of Simon, the jailer? The two elder vetoes, Monsieur and Madame, came to the guillotine in Paris, and the young one to a death, compared to which the guillotine was mercy. And now, why this allusion? what application of its moral? Surely it is not pointless; not devoid of meaning and practical application. We have no bloody guillotines here, but we have political ones: sharp axes falling from high, and cutting off political heads! Is the service of that axe invoked here upon 'General Andrew Veto?' If so, and the invocation should be successful, then Andrew Jackson, like Louis 16th, will cease to be in any body's way in their march to power."

Mr. Clay also introduced a fable, not taken from Æsop – that of the cat and the eagle – the moral of which was attempted to be turned against him. It was in allusion to the President's message in relation to the bank, and the conduct of his friends since in "attacking" the institution; and said:

"They have done so; and their condition now reminds mo of the fable invented by Dr. Franklin, of the Eagle and the Cat, to demonstrate that Æsop had not exhausted invention, in the construction of his memorable fables. The eagle, you know, Mr. President, pounced, from his lofty flight in the air, upon a cat, taking it to be a pig. Having borne off his prize, he quickly felt most painfully the claws of the cat thrust deeply into his sides and body. Whilst flying, he held a parley with the supposed pig, and proposed to let go his hold, if the other would let him alone. No, says puss, you brought me from yonder earth below, and I will hold fast to you until you carry me back; a condition to which the eagle readily assented."