Volume 2 — SPEECHES. (continued 16)

Entertaining this opinion of the address, I came to Washington at the commencement of the session, with the most confident and buoyant hopes that the whigs would be able to carry all their prominent measures, and especially a bank of the United States, by far that one of the greatest immediate importance. I anticipated nothing but cordial coöperation between the two departments of government; and I reflected with pleasure, that I should find, at the head of the executive branch, a personal and political friend, whom I had long and intimately known, and highly esteemed. It will not be my fault, if our amicable relations should unhappily cease, in consequence of any difference of opinion between us on this occasion. The president has been always perfectly familiar with my opinion on this bank question.

Upon the opening of the session, but especially on the receipt of a plan of a national bank, as proposed by the secretary of the treasury, fears were excited that the president had been misunderstood in his address, and that he had not waived but adhered to his constitutional scruples. Under these circumstances, it was hoped, that, by the indulgence of a mutual spirit of compromise and concession, a bank, competent to fulfil the expectations and satisfy the wants of the people, might be established.

Under the influence of that spirit, the senate and the house agreed, first, as to the name of the proposed bank. I confess, sir, that there was something exceedingly outré and revolting to my ears, in the term ‘fiscal bank;’ but I thought, ‘what is there in a name? A rose by any other name would smell as sweet.’ Looking, therefore, rather to the utility of the substantial faculties, than to the name of the contemplated institution, we consented to that which was proposed.

Secondly, as to the place of location of the bank. Although Washington had passed through my mind as among the cities in which it might be expedient to place the bank, it was believed to be the least eligible of some four or five other cities. Nevertheless, we consented to fix it here.

And, lastly, in respect to the branching power, there was not, probably, a solitary vote given in either house of congress for the bill, that did not greatly prefer the unqualified branching power, as asserted in the charters of the two former banks of the United States, to the sixteenth fundamental condition, as finally incorporated in this bill. It is perfectly manifest, therefore, that it was not in conformity with the opinion and wish of majorities in congress, but in a friendly spirit of concession towards the president and his particular friends, that the clause assumed that form. So repugnant was it to some of the best friends of a national bank in the other house, that they finally voted against the bill, because it contained that compromise of the branching power.

It is true, that in presenting the compromise to the senate, I stated, as was the fact, that I did not know whether it would be acceptable to the president or not; that, according to my opinion, each department of the government should act upon its own responsibility, independently of the other; and that I presented the modification of the branching power because it was necessary to insure the passage of the bill in the senate, having ascertained that the vote would stand twenty-six against it to twenty-five, if the form of that power which had been reported by the committee were persisted in. But I nevertheless did entertain the most confident hopes and expectations, that the bill would receive the sanction of the president; and this motive, although not the immediate one, had great weight in the introduction and adoption of the compromise clause. I knew that our friends who would not vote for the bill as reported, were actuated, as they avowed, by considerations of union and harmony, growing out of supposed views of the president, and I presumed that he would not fail to feel and appreciate their sacrifices. But I deeply regret that we were mistaken. Notwithstanding all our concessions, made in a genuine and sincere spirit of conciliation, the sanction of the president could not be obtained, and the bill has been returned by him with his objections.

And I shall now proceed to consider those objections, with as much brevity as possible, but with the most perfect respect, official and personal, towards the chief magistrate.

After stating that the power of congress to establish a national bank, to operate per se, has been a controverted question from the origin of the government, the president remarks:

‘Men most justly and deservedly esteemed for their high intellectual endowments, their virtue and their patriotism, have, in regard to it, entertained different and conflicting opinions. Congress have differed. The approval of one president has been followed by the disapproval of another.’

From this statement of the case it may be inferred, that the president considers the weight of authority, pro and con, to be equal and balanced. But if he intended to make such an array of it, if he intended to say that it was an equilibrium, I must respectfully, but most decidedly, dissent from him. I think the conjoint testimony of history, tradition, and the knowledge of living witnesses proves the contrary. How stands the question as to the opinion of congresses? The congress of 1791, the congress of 1813–14, the congress of 1815–16, the congress of 1831–32, and, finally, the present congress, have all respectively and unequivocally, affirmed the existence of a power in congress to establish a national bank to operate per se. We behold, then, the concurrent opinion of five different congresses on one side. And what congress is there on the opposite side? The congress of 1811? I was a member of the senate in that year, when it decided, by the casting vote of the vice-president, against the renewal of the charter of the old bank of the United States. And I now here, in my place, add to the testimony already before the public, by declaring that it is within my certain knowledge, that that decision of the senate did not proceed from a disbelief of a majority of the senate in the power of congress to establish a national bank, but from combined considerations of expediency and constitutionality. A majority of the senate, on the contrary, as I know, entertained no doubt as to the power of congress. Thus the account, as to congresses, stands five for and not one, or, at most, not more than one, against the power.

Let us now look into the state of authority derivable from the opinions of presidents of the United States. President Washington believed in the power of congress, and approved a bank bill. President Jefferson approved acts to extend branches into other parts of the United States, and to punish counterfeiters of the notes of the bank—acts which were devoid of all justification, whatever, upon the assumption of the unconstitutionality of the bank. For how could branches be extended, or punishment be lawfully inflicted, upon the counterfeiters of the paper of a corporation which came into existence without any authority, and in violation of the constitution of the land? James Madison, notwithstanding those early scruples which he had entertained, and which he probably still cherished, sanctioned and signed a bill to charter the late bank of the United States. It is perfectly well known that Mr. Monroe never did entertain any scruples or doubts in regard to the power of congress. Here, then, are four presidents of the United States who have directly or collaterally borne official testimony to the existence of the bank power in congress. And what president is there, that ever bore unequivocally opposite testimony—that disapproved a bank charter, in the sense intended by president Tyler? General Jackson, although he did apply the veto power to the bill for rechartering the late bank of the United States in 1832, it is within the perfect recollection of us all, not only testified to the utility of a bank of the United States, but declared, that, if he had been applied to by congress, he could have furnished the plan of such a bank.

Thus, Mr. President, we perceive, that, in reviewing the action of the legislative and executive departments of the government, there is a vast preponderance of the weight of authority maintaining the existence of the power in congress. But president Tyler has, I presume unintentionally, wholly omitted to notice the judgment and decisions of the third coördinate department of the government upon this controverted question—that department, whose interpretations of the constitution, within its proper jurisdiction and sphere of action, are binding upon all; and which, therefore, may be considered as exercising a controlling power over both the other departments. The supreme court of the United States, with its late chief justice, the illustrious Marshall, at its head, unanimously decided that congress possessed this bank power; and this adjudication was sustained and reaffirmed whenever afterwards the question arose before the court.

After recounting the occasions, during his public career, on which he had expressed an opinion against the power of congress to charter a bank of the United States, the president proceeds to say:

‘Entertaining the opinions alluded to, and having taken this oath, the senate and the country will see that I could not give my sanction to a measure of the character described, without surrendering all claim to the respect of honorable men—all confidence on the part of the people, all self-respect, all regard for moral and religious obligations; without an observance of which no government can be prosperous, and no people can be happy. It would be to commit a crime, which I would not wilfully commit to gain any earthly reward, and which would justly subject me to the ridicule and scorn of all virtuous men.’

Mr. President, I must think, and hope I may be allowed to say, with profound deference to the chief magistrate, that it appears to me, he has viewed with too lively sensibility the personal consequences to himself of his approval of the bill; and that, surrendering himself to a vivid imagination, he has depicted them in much too glowing and exaggerated colors, and that it would have been most happy, if he had looked more to the deplorable consequences of a veto upon the hopes, the interests, and the happiness of his country. Does it follow that a magistrate who yields his private judgment to the concurring authority of numerous decisions, repeatedly and deliberately pronounced, after the lapse of long intervals, by all the departments of government, and by all parties, incurs the dreadful penalties described by the president? Can any man be disgraced and dishonored, who yields his private opinion to the judgment of the nation? In this case, the country, (I mean a majority,) congress, and, according to common fame, a unanimous cabinet, were all united in favor of the bill. Should any man feel himself humbled and degraded in yielding to the conjoint force of such high authority? Does any man, who at one period of his life shall have expressed a particular opinion, and at a subsequent period shall act upon the opposite opinion, expose himself to the terrible consequences which have been portrayed by the president? How is it with the judge, in the case by no means rare, who bows to the authority of repeated precedents, settling a particular question, whilst in his private judgment, the law was otherwise? How is it with that numerous class of public men in this country, and with the two great parties that have divided it, who, at different periods have maintained and acted on opposite opinions in respect to this very bank question?

How is it with James Madison, the father of the constitution—that great man whose services to his country placed him only second to Washington; whose virtues and purity in private life, whose patriotism, intelligence, and wisdom in public councils, stand unsurpassed? He was a member of the national convention that formed, and of the Virginia convention that adopted, the constitution. No man understood it better than he did. He was opposed, in 1791, to the establishment of the bank of the United States, upon constitutional ground; and, in 1816, he approved and signed the charter of the late bank of the United States. It is a part of the secret history connected with the first bank, that James Madison had, at the instance of general Washington, prepared a veto for him in the contingency of his rejection of the bill. Thus stood James Madison, when, in 1815, he applied the veto to a bill to charter a bank upon considerations of expediency, but with a clear and express admission of the existence of a constitutional power of congress to charter one. In 1816, the bill which was then presented to him being free from the objections applicable to that of the previous year, he sanctioned and signed it. Did James Madison surrender ‘all claim to the respect of honorable men, all confidence on the part of the people, all self-respect, all regard for moral and religious obligations?’ Did the pure, the virtuous, the gifted James Madison, by his sanction and signature to the charter of the late bank of the United States, commit a crime, which justly subjected him ‘to the ridicule and scorn of all virtuous men?’

Not only did the president, as it respectfully appears to me, state entirely too strongly the consequences of his approval of the bill, but is he perfectly correct in treating the question, (as he seems to me to have done,) which he was called upon to decide, as presenting the sole alternative of his direct approval or rejection of the bill? Was the preservation of the consistency and the conscience of the president wholly irreconcilable with the restoration of the blessings of a sound currency, regular and moderate exchanges, and the revival of confidence and business, which congress believes will be secured by a national bank? Was there no alternative but to prolong the sufferings of a bleeding country, or to send us this veto? From the administration of the executive department of the government, during the last twelve years, has sprung most of the public ills which have afflicted the people. Was it necessary that that source of suffering should continue to operate, in order to preserve the conscience of the president unviolated? Was that the only sad and deplorable alternative? I think, Mr. President, there were other alternatives worthy of the serious and patriotic consideration of the president. The bill might have become a law, in virtue of the provision which required its return within ten days. If the president had retained it three days longer, it would have been a law, without his sanction and without his signature. In such a contingency, the president would have remained passive, and would not have been liable to any accusation of having himself violated the constitution. All that could have been justly said would be, that he did not choose to throw himself in the way as an obstacle to the passage of a measure indispensable to the prosperity of the nation, in the judgment of the party which brought him into power, of the whig congress which he first met, and, if public fame speaks true, of the cabinet which the lamented Harrison called around him, and which he voluntarily continued. In an analagous case, Thomas McKean, when governor of Pennsylvania, than whom the United States have produced but few men of equal vigor of mind and firmness of purpose, permitted a bill to become a law, although, in his opinion, it was contrary to the constitution of that state. And I have heard, and, from the creditable nature of the source, I am inclined to believe, although I will not vouch for the fact, that towards the close of the charter of the first bank of the United States during the second term of Mr. Jefferson, some consideration of the question of the renewal of the charter was entertained, and that he expressed a wish, that, if the charter were renewed, it might be effected by the operation of the ten days’ provision, and his consistency thus preserved.

If it were possible to disinter the venerated remains of James Madison, reanimate his perishing form, and place him once more in that chair of state, which he so much adorned, what would have been his course, if this bill had been presented to him, even supposing him never to have announced his acquiescence in the settled judgment of the nation? He would have said, that human controversy, in regard to a single question, should not be perpetual, and ought to have a termination. This, about the power to establish a bank of the United States, has been long enough continued. The nation, under all the forms of its public action, has often and deliberately decided it. A bank, and associated financial and currency questions, which had long slept, were revived, and have divided the nation during the last ten years of arduous and bitter struggle; and the party which put down the bank, and which occasioned all the disorders in our currency and finances, has itself been signally put down, by one of those great moral and political revolutions which a free, a patriotic people can but seldom arouse itself to make. Human infallibility has not been granted by God; and the chances of error are much greater on the side of one man, than on that of the majority of a whole people and their successive legislatures during a long period of time. I yield to the irresistible force of authority. I will not put myself in opposition to a measure so imperatively demanded by the public voice, and so essential to elevate my depressed and suffering countrymen.

And why should not president Tyler have suffered the bill to become a law without his signature? Without meaning the slightest possible disrespect to him, (nothing is further from my heart than the exhibition of any such feeling towards that distinguished citizen, long my personal friend,) it cannot be forgotten, that he came into his present office under peculiar circumstances. The people did not foresee the contingency which has happened. They voted for him as vice-president. They did not, therefore, scrutinize his opinions with the care which they probably ought to have done, and would have done, if they could have looked into futurity. If the present state of the fact could have been anticipated—if at Harrisburg, or at the polls, it had been foreseen, that general Harrison would die in one short month after the commencement of his administration; that vice-president Tyler would be elevated to the presidential chair; that a bill, passed by decisive majorities of the first whig congress, chartering a national bank, would be presented for his sanction, and that he would veto the bill, do I hazard any thing, when I express the conviction, that he would not have received a solitary vote in the nominating convention nor one solitary electoral vote in any state in the union?

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 judicial proceeding, 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 on the 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 whatever to 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.

The last proviso to which the president refers is in these words: ‘and provided, nevertheless, that whenever it shall become necessary and proper for carrying into execution any of the powers granted by the constitution, to establish an office or offices in any of the states whatever, and the establishment thereof shall be directed by law, it shall be the duty of the said directors to establish such office or offices accordingly.’

This proviso was intended to reserve a power to congress to compel the bank to establish branches, if the establishment of them should be necessary to the great purposes of this government, notwithstanding the dissent of a state. If, for example, a state had once unconditionally dissented to the establishment of a branch, and afterwards assented, the bank could not have been compelled, without this reservation of power, to establish the branch, however urgent the wants of the treasury might be.

The president, I think, ought to have seen, in the form and language of the proviso, the spirit of conciliation in which it was drawn, as I know. It does not assert the power; it employs the language of the constitution itself, leaving every one free to interpret that language according to his own sense of the instrument.

Why was it deemed necessary to speak of its being ‘the language of the master to the vassal,’ of ‘this iron rule,’ that ‘congress wills, and submission is demanded?’ What is this whole federal government but a mass of powers abstracted from the sovereignty of the several states, and wielded by an organized government for their common defence and general welfare, according to the grants of the constitution? These powers are necessarily supreme; the constitution, the acts of congress, and treaties being so declared by the express words of the constitution. Whenever, therefore, this government acts within the powers granted to it by the constitution, submission and obedience are due from all; from states as well as from persons. And if this present the image of a master and a vassal, of state subjection and congressional domination, it is the constitution, created or consented to by the states, that ordains these relations. Nor can it be said, in the contingency supposed, that an act of congress has repealed an act of state legislation. Undoubtedly in case of a conflict between a state constitution or state law, and the constitution of the United States, or an act of congress passed in pursuance of it, the state constitution or state law would yield. But it could not, at least, be formally or technically said, that the state constitution or law was repealed. Its operation would be suspended or abrogated by the necessary predominance of the paramount authority.

The president seems to have regarded as objectionable that provision in the clause which declares, that a branch being once established, it should not afterwards be withdrawn or removed without the previous consent of congress. That provision was intended to operate both upon the bank and the states. And, considering the changes and fluctuations in public sentiment in some of the states within the last few years, was the security against them to be found in that provision unreasonable? One legislature might invite a branch, which the next might attempt, by penal or other legislation, to drive away. We have had such examples heretofore, and I cannot think that it was unwise to profit by experience. Besides, an exactly similar provision was contained in the scheme of a bank which was reported by the secretary of the treasury, and to which it was understood the president had given his assent. But if I understand this message, that scheme could not have obtained his sanction, if congress had passed it without any alteration whatever. It authorized what is termed by the president local discount, and he does not believe the constitution confers upon congress power to establish a bank having that faculty. He says, indeed, ‘I regard the bill as asserting for congress the right to incorporate a United States bank, with power and right to establish offices of discount and deposit in the several states of this union, with or without their consent; a principle to which I have always heretofore been opposed, and which can never obtain my sanction.’ I pass with pleasure from this painful theme; deeply regretting that I have been constrained so long to dwell on it.

On a former occasion I stated, that in the event of an unfortunate difference of opinion between the legislative and executive departments, the point of difference might be developed, and it would be then seen whether they could be brought to coincide in any measure corresponding with the public hopes and expectations. I regret that the president has not, in this message, favored us with a more clear and explicit, exhibition of his views. It is sufficiently manifest that he is decidedly opposed to the establishment of a new bank of the United States formed after the two old models. I think it is fairly to be inferred, that the plan of the secretary of the treasury could not have received his sanction. He is opposed to the passage of the bill which he has returned; but whether he would give his approbation to any bank, and, if any, what sort of a bank, is not absolutely clear. I think it may be collected from the message, with the aid or information derived through other sources, that the president would concur in the establishment of a bank whose operations should be limited to dealing in bills of exchange, to deposits, and to the supply of a circulation, excluding the power of discounting promissory notes. And I understand that some of our friends are now considering the practicability of arranging and passing a bill in conformity with the views of president Tyler? Whilst I regret that I can take no active part in such an experiment, and must reserve to myself the right of determining, whether I can or cannot vote for such a bill after I see it in its matured form, I assure my friends that they shall find no obstacle or impediment in me. On the contrary, I say to them, go on: God speed you in any measure which will serve the country, and preserve or restore harmony and concert between the departments of government. An executive veto of a bank of the United States, after the sad experience of late years, is an event which was not anticipated by the political friends of the president; certainly not by me. But it has come upon us with tremendous weight, and amidst the greatest excitement within and without the metropolis. The question now is, what shall be done? What, under this most embarrassing and unexpected state of things, will our constituents expect of us? What is required by the duty and the dignity of congress? I repeat, that if, after a careful examination of the executive message, a bank can be devised which will afford any remedy to existing evils, and secure the president’s approbation, let the project of such a bank be presented. It shall encounter no opposition, if it should receive no support, from me.

But what further shall we do? Never, since I have enjoyed the honor of participating in the public councils of the nation, a period now of nearly thirty-five years, have I met congress under more happy or more favorable auspices. Never have I seen a house of representatives animated by more patriotic dispositions; more united, more determined, more business-like. Not even that house which declared war in 1812, nor that which, in 1815–16, laid broad and deep foundations of national prosperity, in adequate provisions for a sound currency, by the establishment of a bank of the United States, for the payment of the national debt, and for the protection of American industry. This house has solved the problem of the competency of a large deliberative body to transact the public business. If happily there had existed a concurrence of opinion and cordial coöperation between the different departments of the government, and all the members of the party, we should have carried every measure contemplated at the extra session, which the people had a right to expect from our pledges, and should have been, by this time, at our respective homes. We are disappointed in one, and an important one, of that series of measures; but shall we therefore despair? Shall we abandon ourselves to unworthy feelings and sentiments? Shall we allow ourselves to be transported by rash and intemperate passions and counsels? Shall we adjourn, and go home in disgust? No! No! No! A higher, nobler, and more patriotic career lies before us. Let us here, at the east end of Pennsylvania avenue, do our duty, our whole duty, and nothing short of our duty, towards our common country. We have repealed the sub-treasury. We have passed a bankrupt law—a beneficent measure of substantial and extensive relief. Let us now pass the bill for the distribution of the proceeds of the public lands, the revenue-bill, and the bill for the benefit of the oppressed people of this district. Let us do all, let us do every thing we can for the public good. If we are finally to be disappointed in our hopes of giving to the country a bank, which will once more supply it with a sound currency, still let us go home and tell our constituents, that we did all that we could under actual circumstances; and that, if we did not carry every measure for their relief, it was only because to do so was impossible. If nothing can be done at this extra session, to put upon a more stable and satisfactory basis the currency and exchanges of the country, let us hope that hereafter some way will be found to accomplish that most desirable object, either by an amendment of the constitution, limiting and qualifying the enormous executive power, and especially the veto, or by increased majorities in the two houses of congress, competent to the passage of wise and salutary laws, the president’s objections notwithstanding.

This seems to me to be the course now incumbent upon us to pursue; and by conforming to it, whatever may be the result of laudable endeavors, now in progress or in contemplation in relation to a new attempt to establish a bank, we shall go home bearing no self-reproaches for neglected or abandoned duty.

ON THE BANK VETO.

IN REPLY TO THE SPEECH OF MR. RIVES, OF VIRGINIA, ON THE EXECUTIVE MESSAGE CONTAINING THE PRESIDENT’S OBJECTIONS TO THE BANK BILL

IN THE SENATE OF THE UNITED STATES, AUGUST 19, 1841.

MR. RIVES having concluded his remarks,

Mr. Clay rose in rejoinder. I have no desire, said he, to prolong this unpleasant discussion; but I must say that I heard with great surprise and regret the closing remark, especially, of the honorable gentleman from Virginia, as, indeed, I did many of those which preceded it. That gentleman stands in a peculiar situation. I found him several years ago in the half-way house, where he seems afraid to remain, and from which he is yet unwilling to go. I had thought, after the thorough riddling which the roof of the house had received in the breaking up of the pet-bank system, he would have fled somewhere else for refuge; but there he still stands, solitary and alone, shivering and pelted by the pitiless storm. The sub-treasury is repealed; the pet-bank system is abandoned; the United States bank bill is vetoed; and now, when there is as complete and perfect a reunion of the purse and the sword in the hands of the executive as ever there was under general Jackson or Mr. Van Buren, the senator is for doing nothing! The senator is for going home, leaving the treasury and the country in their lawless condition! Yet no man has heretofore, more than he has, deplored and deprecated a state of things so utterly unsafe, and repugnant to all just precautions, indicated alike by sound theory and experience in free governments. And the senator talks to us about applying to the wisdom of practical men, in respect to banking, and advises further deliberation! Why, I should suppose that we are at present in the very best situation to act upon the subject. Besides the many painful years we have had for deliberation, we have been near three months almost exclusively engrossed with the very subject itself. We have heard all manner of facts, statements, and arguments in any way connected with it. We understand, it seems to me, all we ever can learn or comprehend about a national bank. And we have, at least, some conception too of what sort of one will be acceptable at the other end of the avenue. Yet now, with a vast majority of the people of the entire country crying out to us for a bank; with the people throughout the whole valley of the Mississippi rising in their majesty, and demanding it as indispensable to their well-being, and pointing to their losses, their sacrifices, and their sufferings, for the want of such an institution; in such a state of things, we are gravely and coldly told by the honorable senator from Virginia, that we had best go home, leaving the purse and the sword in the uncontrolled possession of the president, and, above all things, never to make a party bank! Why sir, does he, with all his knowledge of the conflicting opinions which prevail here, and have prevailed, believe that we ever can make a bank but by the votes of one party who are in favor of it, in opposition to the votes of another party against it? I deprecate this expression of opinion from that gentleman the more, because, although the honorable senator professes not to know the opinions of the president, it certainly does turn out in the sequel, that there is a most remarkable coincidence between those opinions and his own; and he has, on the present occasion, defended the motives and the course of the president with all the solicitude and all the fervent zeal of a member of his privy council. There is a rumor abroad, that a cabal exists—a new sort of kitchen cabinet—whose object is the dissolution of the regular cabinet, the dissolution of the whig party, the dispersion of congress without accomplishing any of the great purposes of the extra session, and a total change, in fact, in the whole face of our political affairs. I hope, and I persuade myself, that the honorable senator is not, cannot be, one of the component members of such a cabal; but I must say, that there has been displayed by the honorable senator to-day a predisposition, astonishing and inexplicable, to misconceive almost all of what I have said, and a perseverance, after repeated corrections, in misunderstanding—for I will not charge him with wilfully and intentionally misrepresenting—the whole spirit and character of the address which, as a man of honor, and as a senator, I felt myself bound in duty to make to this body.

The senator begins with saying that I charge the president with ‘perfidy!’ Did I use any such language? I appeal to every gentleman who heard me, to say whether I have in a single instance gone beyond a fair and legitimate examination of the executive objections to the bill. Yet he has charged me with ‘arraigning’ the president, with indicting him in various counts, and with imputing to him motives such as I never even intimated or dreamed; and that, when I was constantly expressing, over and over, my personal respect and regard for president Tyler, for whom I have cherished an intimate personal friendship of twenty years’ standing, and while I expressly said, that if that friendship should now be interrupted, it should not be my fault! Why, sir, what possible, what conceivable motive can I have to quarrel with the president, or to break up the whig party? What earthly motive can impel me to wish for any other result than that that party shall remain in perfect harmony, undivided, and shall move undismayed boldly and unitedly forward to the accomplishment of the all-important public objects which it has avowed to be its aim? What imaginable interest or feeling can I have other than the success, the triumph, the glory of the whig party? But that there may be designs and purposes on the part of certain other individuals to place me in inimical relations with the president, and to represent me as personally opposed to him, I can well imagine—individuals who are beating up for recruits, and endeavoring to form a third party with materials so scanty as to be wholly insufficient to compose a decent corporal’s guard. I fear there are such individuals, though I do not charge the senator as being himself one of them. What a spectacle has been presented to this nation during this entire session of congress! That of the cherished and confidential friends of John Tyler, persons who boast and claim to be, par excellence, his exclusive and genuine friends, being the bitter, systematic, determined, uncompromising opponents of every leading measure of John Tyler’s administration! Was there ever before such an example presented, in this or any other age, in this or any other country? I have myself known the president too long, and cherish toward him too sincere a friendship, to allow my feelings to be affected or alienated by any thing which has passed here to-day. If the president chooses—which I am sure he cannot, unless falsehood has been whispered into his ears or poison poured into his heart—to detach himself from me, I shall deeply regret it, for the sake of our common friendship, and our common country. I now repeat, what I before said, that, of all the measures of relief which the American people have called upon us for, that of a national bank, and a sound and uniform currency, has been the most loudly and importunately demanded. The senator says, that the question of a bank was not the issue made before the people at the late election. I can say, for one, my own conviction is diametrically the contrary. What may have been the character of the canvass in Virginia, I will not say; probably gentlemen on both sides were, every where, governed in some degree by considerations of local policy. What issues may, therefore, have been presented to the people of Virginia, either above or below tidewater, I am not prepared to say. The great error, however, of the honorable senator is, in thinking, that the sentiments of a particular party in Virginia are always a fair exponent of the sentiments of the whole union. I can tell that senator, that wherever I was, in the great valley of the Mississippi, in Kentucky, in Tennessee, in Maryland—in all the circles in which I moved—everywhere, ‘bank or no bank’ was the great, the leading, the vital question. At Hanover, in Virginia, during the last summer, at one of the most remarkable, and respectable, and gratifying assemblages that I ever attended, I distinctly announced my conviction, that a bank of the United States was indispensable. As to the opinions of general Harrison, I know that, like many others, he had entertained doubts as to the constitutionality of a bank; but I also know that, as the election approached, his opinions turned more in favor of a national bank; and I speak from my own personal knowledge of his opinions, when I say that I have no more doubt he would have signed that bill, than that you, Mr. President, now occupy that chair, or that I am addressing you.

I rose not to say one word which should wound the feelings of President Tyler. The senator says that, if placed in like circumstances, I would have been the last man to avoid putting a direct veto upon the bill, had it met my disapprobation; and he does me the honor to attribute to me high qualities of stern and unbending intrepidity. I hope, that in all that relates to personal firmness, all that concerns a just appreciation of the insignificance of human life—whatever may be attempted to threaten or alarm a soul not easily swayed by opposition, or awed or intimidated by menace—a stout heart and a steady eye, that can survey, unmoved and undaunted, any mere personal perils that assail this poor, transient, perishing frame, I may, without disparagement, compare with other men. But there is a sort of courage, which, I frankly confess it, I do not possess, a boldness to which I dare not aspire, a valor which I cannot covet. I cannot lay myself down in the way of the welfare and happiness of my country. That I cannot, I have not the courage to do. I cannot interpose the power with which I may be invested, a power conferred not for my personal benefit, nor for my aggrandizement, but for my country’s good, to check her onward march to greatness and glory. I have not courage enough, I am too cowardly for that. I would not, I dare not, in the exercise of such a trust, lie down, and place my body across the path that leads my country to prosperity and happiness. This is a sort of courage widely different from that which a man may display in his private conduct and personal relations. Personal or private courage is totally distinct from that higher and nobler courage which prompts the patriot to offer himself a voluntary sacrifice to his country’s good.

Nor did I say, as the senator represents, that the president should have resigned. I intimated no personal wish or desire that he should resign. I referred to the fact of a memorable resignation in his public life. And what I did say was, that there were other alternatives before him besides vetoing the bill; and that it was worthy of his consideration whether consistency did not require that the example which he had set when he had a constituency of one state, should not be followed when he had a constituency commensurate with the whole union. Another alternative was to suffer the bill, without his signature, to pass into a law under the provisions of the constitution. And I must confess I see, in this, no such escaping by the back door, no such jumping out of the window, as the senator talks about. Apprehensions of the imputation of the want of firmness sometimes impel us to perform rash and inconsiderate acts. It is the greatest courage to be able to bear the imputation of the want of courage. But pride, vanity, egotism, so unamiable and offensive in private life, are vices which partake of the character of crimes in the conduct of public affairs. The unfortunate victim of these passions cannot see beyond the little, petty, contemptible circle of his own personal interests. All his thoughts are withdrawn from his country, and concentrated on his consistency, his firmness, himself. The high, the exalted, the sublime emotions of a patriotism, which, soaring towards heaven, rises far above all mean, low, or selfish things, and is absorbed by one soul-transporting thought of the good and the glory of one’s country, are never felt in his impenetrable bosom. That patriotism which, catching its inspirations from the immortal God, and leaving at an immeasurable distance below all lesser, grovelling, personal interests and feelings, animates and prompts to deeds of self-sacrifice, of valor, of devotion, and of death itself—that is public virtue; that is the noblest, the sublimest of all public virtues!

I said nothing of any obligation on the part of the president to conform his judgment to the opinions of the senate and house of representatives, although the senator argued as if I had, and persevered in so arguing, after repeated corrections. I said no such thing. I know and respect the perfect independence of each department, acting within its proper sphere, of other departments. But I referred to the majorities in the two houses of congress as further and strong evidence of the opinion of the people of the United States in favor of the establishment of a bank of the United States. And I contended that, according to the doctrine of instructions which prevailed in Virginia, and of which the president is a disciple, and, in pursuance of the example already cited, he ought not to have rejected the bill.

I have heard that, on his arrival at the seat of the general government, to enter upon the duties of the office of vice-president, in March last, when interrogated how far he meant to conform, in his new station, to certain peculiar opinions which were held in Virginia, he made this patriotic and noble reply: ‘I am vice-president of the United States, and not of the state of Virginia; and I shall be governed by the wishes and opinions of my constituents.’ When I heard of this encouraging and satisfactory reply, believing, as I most religiously do, that a large majority of the people of the United States are in favor of a national bank, (and gentlemen may shut their eyes to the fact, deny or dispute, or reason it away as they please, but it is my conscientious conviction that two-thirds, if not more, of the people of the United States desire such an institution,) I thought I beheld a sure and certain guarantee for the fulfilment of the wishes of the people of the United States. I thought it impossible, that the wants and wishes of a great people, who had bestowed such unbounded and generous confidence, and conferred on him, such exalted honors, should be disregarded and disappointed. It did not enter into my imagination to conceive, that one, who had shown so much deference and respect to the presumed sentiments of a single state, should display less towards the sentiments of the whole nation.

I hope, Mr. President, that, in performing the painful duty which had devolved on me, I have not transcended the limits of legitimate debate. I repeat, in all truth and sincerity, the assurance to the senate and to the country, that nothing but a stern, reluctant, and indispensable sense of honor and of duty could have forced from me the response which I have made to the president’s objections. But, instead of yielding without restraint to the feelings of disappointment and mortification excited by the perusal of his message, I have anxiously endeavored to temper the notice of it, which I have been compelled to take, by the respect due to the office of chief magistrate, and by the personal regard and esteem which I have ever entertained for its present incumbent.

ON A GENERAL BANKRUPT LAW.

IN THE SENATE OF THE UNITED STATES, JANUARY 17, 1842.

[THE subject of a general bankrupt law, after the repeal of the law of 1800, which took place in 1805, had been frequently agitated in congress. Bills were at different periods introduced and discussed, some of which passed the senate, but were lost in the house of representatives. In 1837, president Van Buren recommended to congress the passage of a bankrupt law, exclusively applicable to banks, and other corporations; but the proposition met with very little favor at the time. The pecuniary distress prevailing throughout the country, during the administration of that president, caused many memorials to be presented to congress, praying for a general bankrupt law for the relief of the people, and, on the twenty-third of March, 1840, on presenting a memorial from a large number of the citizens of New York, asking the passage of a uniform bankrupt law, Mr. Clay took occasion to say, that he had been at all times favorable to such a measure, and was then ready to support such a bill, when found suitable in its details, for the exigencies required. In April, three different bills were introduced in the senate, one of which was taken up and discussed. On motion of a senator from Alabama, (an administration man,) sustained by Mr. Clay, of Kentucky, among others, the clause subjecting banks to the operation of the bill was stricken out, by a vote of twenty-eight to sixteen; Mr. Clay, on a subsequent occasion, (February twenty-sixth, 1841,) denying the constitutionality, as well as the expediency, of including corporations in such a law. In June, 1840, Mr. Clay moved to strike out the compulsory provisions in the bill, which was negatived, (seventeen to twenty-five.) He had previously said, (April twenty-second,) ‘that it was not to be denied that the voluntary class of bankruptcies would comprehend a vast majority of all the cases, and hence the bill of the majority of the judiciary committee, would be likely to afford the largest share of relief, in the present embarrassed and deranged state of business.’

The compulsory clause being thus retained, the bill was ordered to be engrossed, on the twenty-fourth of June, by a vote of twenty-four to twenty-three, Mr. Clay in the affirmative. It finally passed the senate on the twenty-fifth, twenty-one to nineteen; but was laid on the table in the house of representatives, on the seventh of July, by a vote of one hundred and one to eighty-nine.

At the extra session of congress in 1841, after the election of president Harrison, the whigs having a majority in both branches, a bankrupt hill was introduced, and after considerable debate, passed the senate July twenty-fourth, 1841, by a vote of twenty-six to twenty-three, and the house of representatives on the eighteenth of August, one hundred and ten to one hundred and six. Mr. Clay supported this bill, declaring that ‘he considered it as part of a system of relief for the country.’

Mr. Walker, of Mississippi, a Van Buren senator, said: ‘the refusal of the late administration to act upon the subject, had done more than any thing else to cause their defeat.’

During the next session of the same congress, the most strenuous efforts were made to repeal the bankrupt law, before the time in which it was to go into operation, which was fixed for the first of February, 1842; and the repeal was carried in the house of representatives, one hundred and twenty-six to ninety-four, on the seventeenth of January, but defeated in the senate on the twenty-eighth, by a vote of twenty-two to twenty-three. While the question was pending, numerous petitions from the people, remonstrating against the repeal of the law, were presented to congress. Mr. Clay, on presenting some of these petitions, on the seventeenth of January, made the following remarks on the subject.]

MR. CLAY said, that he was charged with the presentation of a great many memorials, all remonstrating against any repeal or postponement of the bankrupt law. He would not trouble the senate with having them read. There were a great many from the state of New York; two from the state of Maryland; one from Pennsylvania; one from Newark, New Jersey; one from Boston, signed by hundreds of persons; a city which, from its mercantile character, must be supposed to have knowledge on the subject, in which were mingled the names of those both able and unable to pay their debts; also, three from his own state, (Kentucky,) one from the capital of the state, in which were the proceedings of a meeting, strongly remonstrating against interference with the law, going into arguments to show why it should not be repealed or postponed. To this there were four hundred signatures, all of which, the secretaries informed him, were voluntarily made.

Mr. Clay referred to an opinion, which had been thrown out under the sanction of some high commercial authority in New York, that the bankrupt bill, if it should become a law, would operate to throw one hundred millions worth of property into the market to be sacrificed. Such a remark, coming from that source, might be likely to have some weight. But it must be remembered that the estimate of one hundred millions, was mere assumption and random conjecture, for no man could tell, with any thing like accuracy, what the amount would be; it might just as well have been set down at two hundred millions, as at one. But be the amount what it might, in estimating the weight of the statement, as an argument against the bill, it should be inquired, on the other hand, what would be done with this property, should the bill not go into effect? Would it be kept out of the market? Not at all. On the contrary, it would be thrown into the market, to be sold under the hammer, by sheriffs and other officers executing the process of the courts, and that without competition to raise the price. For when the property of a debtor was seized by one of his creditors, what motive could his other creditors have to enhance its avails, by competition at the sale? None in the world. On the contrary, should the law remain undisturbed, what would be the course of action under it? According to his understanding of the act, it would produce a distribution of the goods of the debtor among all his creditors, pro rata; of course, when his property should be set up to sale, it would be the interest of them all to make as much out of it as possible. They would bid it up, instead of suffering it to be sacrificed for a song. He considered, that whatever might be the exact form of legal proceedings in carrying out the law, the result in practice would be, that, under the benignant operation of the act, there would be a distribution of the debtor’s effects, not only among all his creditors, but at the highest price they could be made to command.

Mr. Clay went on to say that it was not his purpose to go, at this time, into a discussion of the subject generally. He had thought of the bankrupt act as a measure, which came recommended to congress, not only by all considerations of justice, of humanity, and benevolence, but recommended no less by the appalling condition of the country. If, among all the other distresses, discontents, and disorders, which every where prevailed to so alarming an extent, this legislature should now slam the door in the faces of those unfortunate men, who had at length hoped to be liberated from irretrievable embarrassment, by the beneficent operations of this law, it would produce such a state of excitement, distress, disorder, and despair, from one end of the land to the other, that no man could foresee, or even conjecture, the consequences.

But he could not terminate the brief remarks with which he had deemed it proper to accompany the presentation of these petitions and memorials, without adverting, for a moment, to a circumstance which had a personal relation to himself. The senate would do him the justice to admit, that he rarely introduced any thing of that description on their notice; never, indeed, unless under a sense of unavoidable necessity. An intimation had recently appeared in some of the public prints of the day, that the movement now in progress in the other wing of the capitol, towards a repeal of the bankrupt law, had originated with him, (Mr. Clay.) He disdained to enter upon any thing like a defence, against a charge so base and dishonorable, and one so entirely contrary to the entire tenor of his whole public life. It might, with equal probability, or evidence, have been asserted that he was the author or prompter of the proposal of a gentleman near him, to repeal the distribution law. He held the insinuation in profound contempt and scorn.

A single remark he must be permitted, in reference to the delegation in the other house, from his own state. At the last session, every member of that delegation, with one solitary exception, had voted against the passage of the bankrupt bill; and even that single advocate of the bill, on his return to his own district, found so great and general a dissatisfaction with the provisions of the bill, that he had, on the present occasion, felt it his duty to give such a vote, as he presumed it would appear that he had this day given in that body, on the question of repeal. But it seemed, notwithstanding these known facts, that Mr. Clay was to be held responsible for the votes of all the representatives in the other house, from his state, on that question. But those who imagined that Kentuckians were made of so supple, servile stuff, as to take their public course in legislation, from the dictation of any man, had yet to learn their true character. Those gentlemen had as good a right to dictate Mr. Clay’s course, as he had to dictate theirs. The representatives from Kentucky, in either house of congress, had enough of manly independence, to judge and to act for themselves, and to vote as their own individual views of duty should prompt them. But this accusation, base and despicable as it was in itself, had, notwithstanding, assumed such a shape as to render it Mr. Clay’s duty to bring it to the notice of the senate; and he felt very sure that it was only necessary for him to bring it home to the bosom of every senator, to have it promptly, instantaneously rejected and repelled, as utterly groundless. For whatever might have been their difference of sentiment—and no man regretted more than he did, that it should have been his misfortune to differ in opinion from any portion of the gentlemen of that chamber—he was satisfied that all, both friends and foes, would, with one voice, do him the justice to say, that, whatever might have been the errors of his head, he had, at least, sought to live, as he hoped to die, an HONEST MAN—honest in his public, as in his private life.

ON THE AMENDMENT OF THE CONSTITUTION RESPECTING THE VETO POWER.

IN THE SENATE OF THE UNITED STATES, JANUARY 24, 1842.

[THE frequent use of the veto power, by presidents Jackson and Tyler, by which very important bills passed by congress had been defeated, to the detriment of the public interests, induced Mr. Clay, before resigning his seat in the senate, to propose an amendment of the constitution, limiting the power of the president in this respect, on which subject he addressed the senate as follows. There were also two other resolutions submitted by Mr. Clay, having in view the same object—namely, the reduction of executive power within proper limits; first, that no senator or representative should be appointed to any office under the United States during the term for which he was elected; second, the secretary of the treasury to be chosen by congress.]

WHATEVER, said Mr. Clay, might be the ultimate fate of the amendment which had just been read, or of the two other kindred amendments which he had the honor of offering at the same time with it, he should at least enjoy the consciousness of having discharged his duty in their presentation. He must regret, indeed, that the duty of presenting and of advocating their adoption by the senate, had not devolved upon abler and more skilful hands; still, however, he considered the measure as one he was bound in conscience to present in his place, for the action of this body.

Nor had the performance of this duty been prompted, as some might suppose, and as had been suggested in certain quarters, by any recent exercise of the power to which the resolution has reference; yet, he was free to confess, that although the subject was one which had long been in his mind, and on which he had thought much and deeply for years past, the course of recent events had certainly not tended to weaken, if it had not added much to the strength of his impressions on the general subject. As far back as seven years ago, a worthy and lamented friend of his, from Maryland, now no more, had, in concert with himself, presented a proposition the object of which had been to modify, and further to restrain the exercise by the executive, of this veto power. The drafting of the resolution, its presentation, and even the observations with which it was to be accompanied, all had been subjects of joint consultation and consideration between himself and that gentleman. He adverted to this fact for no other purpose than to repel the idea, if it were entertained in the mind of any who now heard him, that the amendment now under consideration, and the others which accompanied it, had been suggested by recent occurrences. As far back as June, 1840, on one of the most solemn occasions in which he had ever been called to address a popular assembly—he alluded to the time when he enjoyed the opportunity of addressing the friends of his youth, and the people of his native county of Hanover, on the subject of the duties to be looked for at the hands of the new whig administration, which was expected to come into power, in consequence of the glorious and universal triumph of the whig party at the then approaching election—he had placed emphatically, and in front of them all, that which formed the subject of the present resolution. After speaking of the veto power generally, and more particularly of it’s exercise by a late president of the United States, the speech proceeded to say:

‘The first, and, in my opinion, the most important object which should engage the serious attention of a new administration, is that of circumscribing the executive power, and throwing around it such limitations and safeguards as will render it no longer dangerous to the public liberties.

‘Whatever is the work of man, necessarily partakes of his imperfections; and it was not to be expected, that, with all the acknowledged wisdom and virtues of the framers of our constitution, they could have sent forth a plan of government so free from all defect, and so full of guarantees, that it should not, in the conflict of embittered parties, and of excited passions, be perverted and misinterpreted. Misconceptions, or erroneous constructions of the powers granted in the constitution, would probably have occurred, after the lapse of many years, in seasons of entire calm, and with a regular and temperate administration of the government; but, during the last twelve years, the machine, driven by a reckless charioteer, with frightful impetuosity, has been greatly jarred and jolted, and it needs careful examination, and thorough repair.

‘With this view, therefore, to the fundamental character of the government itself, and especially of the executive branch, it seems to me that, either by amendments of the constitution, when they are necessary, or by remedial legislation, when the object falls within the scope of the powers of congress, there should be,

‘First, a provision to render a person ineligible to the office of president of the United States after a service of one term. Much observation and deliberate reflection have satisfied me, that too much of the time, the thoughts, and the exertions of the incumbent are occupied, during his first term, in securing his reëlection. The public business, consequently, suffers; and measures are proposed or executed with less regard to the general prosperity, than to their influence upon the approaching election. If the limitation to one term existed, the president would be exclusively devoted to the discharge of his public duties; and he would endeavor to signalize his administration by the beneficence and wisdom of its measures.

‘Secondly, that the veto power should be more precisely defined, and be subjected to further limitations and qualifications.’

Thus, it would be perceived by the senate, that whatever truth or soundness there might be in the opinion which he had embodied in the resolution now submitted to the senate, it was an opinion long since deliberately formed and expressed, and one which had often since been considered and reviewed, unprompted by any of those recent occurrences to which it might otherwise have been supposed to owe its origin.

The particular amendment now before the senate, for its consideration, and to which he should speak before he more briefly adverted to the others which accompanied it, was that which related to the veto power. And while on this subject of redeeming the pledge which was, in some sort, given by him as one of the humblest members of that party which had not long since so signally triumphed, he hoped the senate would allow him, in all truth and sincerity, to say, that he desired to see a party, when it came into power, redeem the pledges and fulfil the promises it made when out of power, and not exhibit that disgraceful spectacle so often witnessed in the political history of other nations, of professing one set of principles, and employing them as a means towards getting into power, and then, when successful in obtaining their wishes, turn round, forget all they had said and promised, and go on to administer the government just as their predecessors had done. He could assure gentlemen, that, on the questions of restraining and limiting executive power, on the necessity of an economical administration of the government, on regulating the dismissing power of the president, on securing a fair and just responsibility in all the departments; in a word, on every great question of national policy to which the party to which he considered himself as belonging were pledged to the people, and to the world; they would find him, on all occasions during the short time in which he expected to remain a member of the body, heartily ready to coöperate in carrying out into practice all they had avowed in principle.

It was his purpose to go but very briefly into the history and origin of the veto power. It was known to all to have originated in the institution of the tribunitian power, in ancient Rome; that it was seized upon, and perverted to purposes of ambition, when the empire was established under Augustus; and that it had not been finally abolished until the reign of Constantine. There could be no doubt that it had been introduced from the practice under the empire, into the monarchies of Europe, in most of which, in some form, and under some modification or other, it was now to be found. But, although it existed in the national codes, the power had not, in the case of Great Britain, been exercised for a century and a half past; and, if he was correctly informed on the subject, it had, in the French monarchy, never been exercised at all. During the memorable period of the French revolution, when a new constitution was under consideration, this subject of the veto power had been largely discussed, and had agitated the whole country. Every one must recollect how it had been turned against the unfortunate Louis XIV, who had been held up to the ridicule of the populace, under the title of ‘Monsieur Veto,’ as his wife, the queen, had been called ‘Madame Veto;’ and, although after much difficulty, the power had finally found a place in the constitution, not a solitary instance had occurred of its actual exercise. Under the colonial state of this country, the power was transplanted, from the experience which had been had of it in Europe, to the laws relating to the colonies, and that in a double form; for there was a veto of the colonial governor, and also a veto of the crown. But what was thought of this power by the inhabitants of these states, when rising to assert their freedom, might be seen in the words of the instrument in which they asserted their independence. At the head of all the grievances stated in that paper, as reasons for our separation from Great Britain, was placed the exercise of this very power of the royal veto. Speaking of the king, the declaration of independence employed this language.

‘He has refused his assent to laws the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operations, till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.’

No doubt, the idea of ingrafting this power upon our own constitution, was adopted by the convention, from having always found it as a power recognised in European governments, just as it had been before derived by them from the practice and history of Rome. At all events, the power was inserted as one feature, not only in the general constitution of the federal government, but also in the constitutions of a portion of the states. Fifty years had now elapsed since the federal constitution was formed, and it was no derogation to the wisdom and patriotism of the venerable men who framed it, now to say, that the work of their hands, though as perfect as ever had proceeded from human hands, was, nevertheless, not absolutely so; because that was what nothing that sprung from man had ever been. But now, after the lapse of half a century, it was interesting to pause, to look back, to review the history of that period, and to compare the predictions of those who then looked into the future, with the actual results of subsequent experience. Any one at all acquainted with the contemporaneous history of the constitution, must know, that one great radical error, which possessed the minds of the wise men who drew up that instrument, was, an apprehension that the executive department of the then proposed government would be too feeble to contend successfully in a struggle with the power of the legislature; hence, it was found that various expedients had been proposed in the convention, with the avowed purpose of strengthening the executive arm; one of which went so far as to propose that the president should be chief magistrate for life. All these proposals had their origin in the one prevailing idea—that of the weakness of the executive, and its incompetence to defend itself against the encroachments of legislative domination and dictation.

Now, let any man look at the actual working of the machine they constructed, and see whether the anticipations which haunted their minds on this subject had been realized or falsified by the subsequent political history of this government. Let him see, whether the executive department was the weak spot in the system. Much had been said about the encroachments of the federal government on the governments of the states, from which complaints, had arisen what was called the states-rights party, and its opposite; but an examination of the facts of the case would demonstrate, that no solitary instance had yet occurred of any such encroachment by the general government; but, on the contrary, Mr. Clay could demonstrate, were this the proper time or occasion for doing so, that there had been an abandonment by that government of the exercise of its own just powers, in relation to the states, and this to such an extent, that the existing state of the country presented very much the aspect that the old confederation had once done, with all its weakness and imbecility.

But while there had been no such thing in practice as an encroachment by the federal upon the state governments, there had been, within the federal government itself, a constant encroachment by the executive upon the legislative department.

First, it attacked the treaty-making power. None could now read the language of the constitution, without at once coming to the conclusion, that the intention of the authors of that instrument was, that the senate should be consulted by the president, not merely in the ratification, but in the inception, of all treaties; that, in the commencement of the negotiations, the instructions of the ministers appointed to treat, the character and provisions of the treaty, the senate should be consulted, and should first yield its assent. And such had, in fact, been the interpretation put upon the treaty-making power, in the first and purest years of our government. Every one must recollect the early history of the exercise of the power, and the high sanction for such a usage. The first president had been wont to come to the senate, there to propose a foreign mission, and to consult with his constitutional advisers, the members of the senate, on the instructions to be given to the minister who should be sent. But this practice had since been abandoned. The president now, without a word of consultation with the senate, on his own mere personal sense of propriety, concluded a treaty, and promised to the foreign power its ratification; and then after all this had been done, and the terms of the treaty agreed upon, he, for the first time, submitted it to the senate for ratification. Now, every one must see, that there was a great difference between rejecting what had been already actually done, and refusing to do that thing if asked beforehand. All must feel, that they often gave their official assent to what they never would have sanctioned, but for the consideration that the treaty was already concluded, and that the faith of the nation was in some sort pledged for its ratification. Another consequence of this executive encroachment, was one from which foreign powers often experienced great inconvenience; he meant the amendments of treaties by the senate, after they were at length submitted. So great had the inconvenience from this source been, that, in more recent treaties, it had come to be the practice to insert, in the body of the treaty itself, a provision against all alteration; so that it must be ratified in its existing form, or not ratified at all.

The next executive encroachment he should notice, was that which occurred in the dismissal from office of persons appointed by and with the consent of the senate. The effect of this practice was virtually to destroy all agency and coöperation of the senate, in such appointments. Of what avail was it that the senate should to-day solemnly ratify and confirm the appointment of an individual to an office under the government, when the president could to-morrow reverse the effect of their act by his mere breath? Every one knew that the power of removal had been grossly perverted. In the early days of the constitution, it had been maintained, that that power could be exercised only in case of malfeasance or misfeasance in office; and that the president who should dare to employ it for any other end, would subject himself to impeachment. But our history and experience has gone to show, that this liability to impeachment was a mere scarecrow, and that it could never have any practical effect in a popular government, constituted as ours was, and in a country politically divided as ours was ever like to be. By the free exercise of this power of removal, the senate had lost its practical influence on the whole subject of appointment to office. Instance after instance had occurred, where an individual had been dismissed by the executive, whom the senate would gladly have replaced in office, but whom they were unable to retain there, and were therefore compelled to sanction the nomination of a successor. The actual result of such a state of things was, he repeated it, that the coöperation of the senate with the president, in the matter of appointments, had been almost completely nullified for years past. Indeed, so perfectly was this understood, that when the senate were deliberating with closed doors, on executive nominations, Mr. Clay frequently walked out of the chamber. Deliberation, in such a case, was one of the idlest things in the world, because every one knew that all resistance must be unavailing. And, even should the objections against the nominee be so gross and undeniable that resistance to his appointment should succeed, they might generally calculate on another nomination, not more to the taste of the senate; and when at length the office was filled, the tenure of the incumbent was not on the joint will of the president and senate acting together, but upon the single will, upon the mere arbitrary breath of one man.

Mr. Clay said, it was not his purpose to go into all the details of these encroachments by the executive, upon the constitutional powers and prerogatives of a single legislative branch of the government. He would now pass to its attacks on the powers of the congress of the United States.

And the first instance of this to which he should refer, was the creation of officers and the designation of their salaries, without the consent of congress, or any consultation with it. Another, and a more formidable instance, was to be found in the assumption within the last few years, of the purse of the nation. He alluded, as every body must understand, to the seizure made by a late executive, of the public deposits placed by law in the bank of the United States—a removal which had been effected under the avowed claim of power to employ the prerogative of removal as a means to compel subordinate executive officers to comply with the will of the president, on the principle that the executive was a unit, and that a single will must control the entire executive department. This seizure of the public deposits had yet been unprovided against; the congressional power to control them had been unresumed, and thus a state of things was permitted to continue, by which the nation was virtually placed at the feet of the executive.

Let not gentlemen mock him, by talking about the impossibility of the president’s drawing money out of the treasury, except under an appropriation by congress. Let them not tell him of the responsibility of public officers; let them look at facts; let them look at what had actually occurred, on the removal of two or three secretaries of the treasury, in order to accomplish this very seizure of the public treasure; and then let them look at the dismissal of a countless host of subordinate officers, because they did not happen to hold the same political opinions that were held by the president. Of what avail were laws? The president had nothing to do but say to his secretary, issue your warrant for such a sum of money, and direct the register and comptroller to sign it, and if they should talk about a regard for their oaths, and boggle at obeying, tell them to do what I command them, and if not, I will find men who will. And he would here say, to all those who professed to be desirous of guarding against such abuses of trust, that unless it were done by an amendment of the constitution, or by a revival and resumption of the power already possessed by congress, under the constitution, they never could effect their purpose. All efforts, all devices, all guards, all guarantees, all attempts of whatever kind, to separate the purse from the sword, would prove in practice utterly vain and ineffectual. There was a third instance of this encroachment, which he was authorized by facts to state, but on which he should not at this time dwell. Not only had the purse of the nation been seized; not only did it still remain in the hands of the president, but the nation had seen armies raised, by executive mandate, not only without authority or shadow of authority of law, but, as in the case of the Florida volunteers, after a law had been asked for, and positively refused. Other instances might be cited, in which a military force had been raised, without the sanction of congress.

Without, therefore, going any further, Mr. Clay said, that he thought a careful review of the operations of this government, down to the present havoc, would fully demonstrate that, while it had made no encroachment on the states, there had been a constant encroachment by the executive on the legislative authority.

And was not this in the nature of things? The executive branch of the government was eternally in action; it was ever awake; it never slept; its action was continuous and unceasing, like the tides of some mighty river, which continued flowing and flowing on, swelling, and deepening, and widening, in its onward progress, till it swept away every impediment, and broke down and removed every frail obstacle which might be set up to impede its course. Let gentlemen look at all history, and they would find that it had ever been so. The legislative branch of government met only periodically; its power lay in its assembling and acting; the moment it adjourned, its power disappeared; it was dissipated, gone; but there stood the president at the head of the executive department, ever ready to enforce the law, and to seize upon every advantage which presented itself, for the extension and augmentation of its power.

And now he would, upon principle, examine for a few moments the motives which might be supposed to have actuated the members of the convention, in conferring upon the executive this veto power. Let us throw ourselves back to the period in which they lived and acted, and then institute a comparison between the expectations in which they had indulged, and the actual facts, as they had since occurred.

On principle, certainly, the executive ought to have no agency in the formation of laws. Laws were the will of the nation authoritatively expressed. The carrying of those laws into effect was the duty which ought to be assigned to the executive, and this ought to be his sole duty, for it was an axiom in all free governments that the three great departments, legislative, executive, and judicial, should ever be kept separate and distinct. And a government was the most perfect when most in conformity with this fundamental principle. To give, then, to the executive, any agency in the ascertainment and expression of the will of the nation, was so far a violation of this great leading principle. But it was said that the framers of our constitution had, nevertheless, been induced to place the veto upon the list of executive powers, by two considerations; the first was a desire to protect the executive against the power of the legislative branch, and the other was a prudent wish to guard the country against the injurious effects of crude and hasty legislation. But where was the necessity to protect the executive against the legislative department? were not both bound by their solemn oaths, to support the constitution? The judiciary had no veto. If the argument was a sound one, why was not the same protection extended to the judiciary also? Was there not ample security against the encroachments of the legislative power, in the absence of the veto? First, there was the solemn oath of office; then there was the authority of the judiciary; then there was the responsibility of individual members to the people, and this responsibility continually kept up by a frequent appeal to the people; and, lastly, there was the ultimate conflict of the president and the legislature before the grand tribunal of the nation itself, in case of any attempt, by the legislature, to deprive him of the rightful exercise of his authority. Besides, if a veto be necessary, as a defence against legislative power, why was there no veto against the highest description of all legislation, the fundamental legislation by a convention? There was no veto there; there was no apprehension of hasty action; no necessity was recognised for the controlling will of one man to save the nation from the heedless acts of its own representatives. But in the case of ordinary legislation, why should such apprehensions be indulged? On this subject, experience was our safest guide. Now, Mr. Clay had taken the pains to look into the provisions of twenty-six state constitutions, in relation to this matter of the veto, and the result was highly curious and interesting. The states were in this respect divided, as equally as their number would admit, into three distinct classes. Nine of them gave to the executive the veto power, unless controlled by two thirds of the legislature. Eight other states conferred the veto, but controlled it by a second veto of a majority, as was proposed in the amendment now under consideration. While the nine remaining states had not inserted the veto at all, and at the head of these stood one which had been called the mother of states—Virginia. Now some of these state constitutions were of a date anterior to that of the constitution of the United States itself. If there had been this very great danger of executive encroachment and of hasty legislation, one would suppose it would have been heard of in these nine states. Had any instance yet occurred to show that such a danger did exist? Mr. Clay had heard of none, read of none; and he put it to the advocates of this arbitrary and monarchical power, he put it especially to democrats, who, while they professed themselves, and, he doubted not, honestly and conscientiously professed themselves friends of the people, came out in the contest between monarchical prerogative on the one hand, and civil freedom on the other, as the avowed advocates of prerogative; he put it to all of them to tell, if such dangers both of encroachment and rashness as were pretended as a pretext for the veto did actually exist, how it happened that in the nine states he had named, during so long a period as had elapsed since their constitutions were formed, no instances had occurred, either of encroachment by the legislature on the powers of the executive, or of such rash and hasty legislation as called for the restraint and safeguard of a single sovereign will.