As early as 1791, after great deliberation, the first bank charter was pa.s.sed by Congress, and approved by President Washington. It established an inst.i.tution, resembling, in all things now objected to, the present bank. That bank, like this, could take lands in payment of its debts; that charter, like the present, gave the States no power of taxation; it allowed foreigners to hold stock; it restrained Congress from creating other banks. It gave also exclusive privileges, and in all particulars it was, according to the doctrine of the message, as objectionable as that now existing. That bank continued twenty years. In 1816, the present inst.i.tution was established, and has been ever since in full operation. Now, Sir, the question of the power of Congress to create such inst.i.tutions has been contested in every manner known to our Const.i.tution and laws. The forms of the government furnish no new mode in which to try this question. It has been discussed over and over again, in Congress; it has been argued and solemnly adjudged in the Supreme Court; every President, except the present, has considered it a settled question; many of the State legislatures have instructed their Senators to vote for the bank; the tribunals of the States, in every instance, have supported its const.i.tutionality; and, beyond all doubt and dispute, the general public opinion of the country has at all times given, and does now give, its full sanction and approbation to the exercise of this power, as being a const.i.tutional power. There has been no opinion questioning the power expressed or intimated, at any time, by either house of Congress, by any President, or by any respectable judicial tribunal. Now, Sir, if this practice of near forty years, if these repeated exercises of the power, if this solemn adjudication of the Supreme Court, with the concurrence and approbation of public opinion, do not settle the question, how is any question ever to be settled, about which any one may choose to raise a doubt?

The argument of the message upon the Congressional precedents is either a bold and gross fallacy, or else it is an a.s.sertion without proofs, and against known facts. The message admits, that, in 1791, Congress decided in favor of a bank; but it adds, that another Congress, in 1811, decided against it. Now, if it be meant that, in 1811, Congress decided against the bank on const.i.tutional ground, then the a.s.sertion is wholly incorrect, and against notorious fact. It is perfectly well known, that many members, in both houses, voted against the bank in 1811, who had no doubt at all of the const.i.tutional power of Congress. They were entirely governed by other reasons given at the time. I appeal, Sir, to the honorable member from Maryland, who was then a member of the Senate, and voted against the bank, whether he, and others who were on the same side, did not give those votes on other well-known grounds, and not at all on const.i.tutional ground?

General Smith here rose, and said, that he voted against the bank in 1811, but not at all on const.i.tutional grounds, and had no doubt such was the case with other members.

We all know, Sir, the fact to be as the gentleman from Maryland has stated it. Every man who recollects, or who has read, the political occurrences of that day, knows it. Therefore, if the message intends to say, that in 1811 Congress denied the existence of any such const.i.tutional power, the declaration is unwarranted, and altogether at variance with the facts. If, on the other hand, it only intends to say, that Congress decided against the proposition then before it on some other grounds, then it alleges that which is nothing at all to the purpose. The argument, then, either a.s.sumes for truth that which is not true, or else the whole statement is immaterial and futile.

But whatever value others may attach to this argument, the message thinks so highly of it, that it proceeds to repeat it. "One Congress,"

it says, "in 1815, decided against a bank, another, in 1816, decided in its favor. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me."

Now, Sir, since it is known to the whole country, one cannot but wonder how it should remain unknown to the President, that Congress _did not_ decide against a bank in 1815. On the contrary, that very Congress pa.s.sed a bill for erecting a bank, by very large majorities. In one form, it is true, the bill failed in the House of Representatives; but the vote was reconsidered, the bill recommitted, and finally pa.s.sed by a vote of one hundred and twenty to thirty-nine. There is, therefore, not only no solid ground, but not even any plausible pretence, for the a.s.sertion, that Congress in 1815 decided against the bank. That very Congress pa.s.sed a bill to create a bank, and its decision, therefore, is precisely the other way, and is a direct practical precedent in favor of the const.i.tutional power. What are we to think of a const.i.tutional argument which deals in this way with historical facts? When the message declares, as it does declare, that there is nothing in precedent which ought to weigh in favor of the power, it sets at naught repeated acts of Congress affirming the power, and it also states other acts, which were in fact, and which are well known to have been, directly the reverse of what the message represents them. There is not, Sir, the slightest reason to think that any Senate or any House of Representatives, ever a.s.sembled under the Const.i.tution, contained a majority that doubted the const.i.tutional existence of the power of Congress to establish a bank.

Whenever the question has arisen, and has been decided, it has always been decided one way. The legislative precedents all a.s.sert and maintain the power; and these legislative precedents have been the law of the land for almost forty years. They settle the construction of the Const.i.tution, and sanction the exercise of the power in question, so far as these effects can ever be produced by any legislative precedents whatever.

But the President does not admit the authority of precedent. Sir, I have always found, that those who habitually deny most vehemently the general force of precedent, and a.s.sert most strongly the supremacy of private opinion, are yet, of all men, most tenacious of that very authority of precedent, whenever it happens to be in their favor. I beg leave to ask, Sir, upon what ground, except that of precedent, and precedent alone, the President's friends have placed his power of removal from office. No such power is given by the Const.i.tution, in terms, nor anywhere intimated, throughout the whole of it; no paragraph or clause of that instrument recognizes such a power. To say the least, it is as questionable, and has been as often questioned, as the power of Congress to create a bank; and, enlightened by what has pa.s.sed under our own observation, we now see that it is of all powers the most capable of flagrant abuse. Now, Sir, I ask again, What becomes of this power, if the authority of precedent be taken away? It has all along been denied to exist; it is nowhere found in the Const.i.tution; and its recent exercise, or, to call things by their right names, its recent abuse, has, more than any other single cause, rendered good men either cool in their affections toward the government of their country, or doubtful of its long continuance. Yet there is _precedent_ in favor of this power, and the President exercises it. We know, Sir, that, without the aid of that _precedent_, his acts could never have received the sanction of this body, even at a time when his voice was somewhat more potential here than it now is, or, as I trust, ever again will be. Does the President, then, reject the authority of all precedent except what it is suitable to his own purpose to use? And does he use, without stint or measure, all precedents which may augment his own power, or gratify his own wishes?

But if the President thinks lightly of the authority of Congress in construing the Const.i.tution, he thinks still more lightly of the authority of the Supreme Court. He a.s.serts a right of individual judgment on const.i.tutional questions, which is totally inconsistent with any proper administration of the government, or any regular execution of the laws. Social disorder, entire uncertainty in regard to individual rights and individual duties, the cessation of legal anthority, confusion, the dissolution of free government,--all these are the inevitable consequences of the principles adopted by the message, whenever they shall be carried to their full extent. Hitherto it has been thought that the final decision of const.i.tutional questions belonged to the supreme judicial tribunal. The very nature of free government, it has been supposed, enjoins this; and our Const.i.tution, moreover, has been understood so to provide, clearly and expressly. It is true, that each branch of the legislature has an undoubted right, in the exercise of its functions, to consider the const.i.tutionality of a law proposed to be pa.s.sed. This is naturally a part of its duty; and neither branch can be compelled to pa.s.s any law, or do any other act, which it deems to be beyond the reach of its const.i.tutional power. The President has the same right, when a bill is presented for his approval; for he is, doubtless, bound to consider, in all cases, whether such bill be compatible with the Const.i.tution, and whether he can approve it consistently with his oath of office. But when a law has been pa.s.sed by Congress, and approved by the President, it is now no longer in the power, either of the same President, or his successors, to say whether the law is const.i.tutional or not. He is not at liberty to disregard it; he is not at liberty to feel or to affect "const.i.tutional scruples," and to sit in judgment himself on the validity of a statute of the government, and to nullify it, if he so chooses. After a law has pa.s.sed through all the requisite forms; after it has received the requisite legislative sanction and the executive approval, the question of its const.i.tutionality then becomes a judicial question, and a judicial question alone. In the courts that question may be raised, argued, and adjudged; it can be adjudged nowhere else.

The President is as much bound by the law as any private citizen, and can no more contest its validity than any private citizen. He may refuse to obey the law, and so may a private citizen; but both do it at their own peril, and neither of them can settle the question of its validity.

The President may _say_ a law is unconst.i.tutional, but he is not the judge. Who is to decide that question? The judiciary alone possesses this unquestionable and hitherto unquestioned right. The judiciary is the const.i.tutional tribunal of appeal for the citizens, against both Congress and the executive, in regard to the const.i.tutionality of laws.

It has this jurisdiction expressly conferred upon it, and when it has decided the question, its judgment must, from the very nature of all judgments that are final, and from which there is no appeal, be conclusive. Hitherto, this opinion, and a correspondent practice, have prevailed, in America, with all wise and considerate men. If it were otherwise, there would be no government of laws; but we should all live under the government, the rule, the caprices, of individuals. If we depart from the observance of these salutary principles, the executive power becomes at once purely despotic; for the President, if the principle and the reasoning of the message be sound, may either execute or not execute the laws of the land, according to his sovereign pleasure. He may refuse to put into execution one law, p.r.o.nounced valid by all branches of the government, and yet execute another, which may have been by const.i.tutional authority p.r.o.nounced void.

On the argument of the message, the President of the United States holds, under a new pretence and a new name, a _dispensing power_ over the laws as absolute as was claimed by James the Second of England, a month before he was compelled to fly the kingdom. That which is now claimed by the President is in truth nothing less, and nothing else, than the old dispensing power a.s.serted by the kings of England in the worst of times; the very climax, indeed, of all the preposterous pretensions of the Tudor and the Stuart races. According to the doctrines put forth by the President, although Congress may have pa.s.sed a law, and although the Supreme Court may have p.r.o.nounced it const.i.tutional, yet it is, nevertheless, no law at all, if he, in his good pleasure, sees fit to deny it effect; in other words, to repeal and annul it. Sir, no President and no public man ever before advanced such doctrines in the face of the nation. There never before was a moment in which any President would have been tolerated in a.s.serting such a claim to despotic power. After Congress has pa.s.sed the law, and after the Supreme Court has p.r.o.nounced its judgment on the very point in controversy, the President has set up his own private judgment against its const.i.tutional interpretation. It is to be remembered, Sir, that it is the present law, it is the act of 1816, it is the present charter of the bank, which the President p.r.o.nounces to be unconst.i.tutional. It is no bank _to be created_, it is no law proposed to be pa.s.sed, which he denounces; it is the _law now existing_, pa.s.sed by Congress, approved by President Madison, and sanctioned by a solemn judgment of the Supreme Court, which he now declares unconst.i.tutional, and which, of course, so far as it may depend on him, cannot be executed. If these opinions of the President be maintained, there is an end of all law and all judicial authority. Statutes are but recommendations, judgments no more than opinions. Both are equally dest.i.tute of binding force. Such a universal power as is now claimed for him, a power of judging over the laws and over the decisions of the judiciary, is nothing else but pure despotism.

If conceded to him, it makes him at once what Louis the Fourteenth proclaimed himself to be when he said, "I am the State."

The Supreme Court has unanimously declared and adjudged that the existing bank _is_ created by a const.i.tutional law of Congress. As has been before observed, this bank, so far as the present question is concerned, is like that which was established in 1791 by Washington, and sanctioned by the great men of that day. In every form, therefore, in which the question can be raised, it has been raised and has been settled. Every process and every mode of trial known to the Const.i.tution and laws have been exhausted, and always and without exception the decision has been in favor of the validity of the law. But all this practice, all this precedent, all this public approbation, all this solemn adjudication directly on the point, is to be disregarded and rejected, and the const.i.tutional power flatly denied. And, Sir, if we are startled at this conclusion, our surprise will not be lessened when we examine the argument by which it is maintained.

By the Const.i.tution, Congress is authorized to pa.s.s all laws "necessary and proper" for carrying its own legislative powers into effect.

Congress has deemed a bank to be "necessary and proper" for these purposes, and it has therefore established a bank. But although the law has been pa.s.sed, and the bank established, and the const.i.tutional validity of its charter solemnly adjudged, yet the President p.r.o.nounces it unconst.i.tutional, because some of the powers bestowed on the bank are, in his opinion, not necessary or proper. It would appear that powers which in 1791 and in 1816, in the time of Washington and in the time of Madison, were deemed "necessary and proper," are no longer to be so regarded, and therefore the bank is unconst.i.tutional. It has really come to this, that the const.i.tutionality of a bank is to depend upon the opinion which one particular man may form of the utility or necessity of some of the clauses in its charter! If that individual chooses to think that a particular power contained in the charter is not necessary to the proper const.i.tution of the bank, then the act is unconst.i.tutional!

Hitherto it has always been supposed that the question was of a very different nature. It has been thought that the policy of granting a particular charter may be materially dependent on the structure and organization and powers of the proposed inst.i.tution. But its general const.i.tutionality has never before been understood to turn on such points. This would be making its const.i.tutionality depend on subordinate questions; on questions of expediency and questions of detail; upon that which one man may think necessary, and another may not. If the const.i.tutional question were made to hinge on matters of this kind, how could it ever be decided? All would depend on conjecture; on the complexional feeling, on the prejudices, on the pa.s.sions, of individuals; on more or less practical skill or correct judgment in regard to banking operations among those who should be the judges; on the impulse of momentary interests, party objects, or personal purposes.

Put the question in this manner to a court of seven judges, to decide whether a particular bank was const.i.tutional, and it might be doubtful whether they could come to any result, as they might well hold very various opinions on the practical utility of many clauses of the charter.

The question in that case would be, not whether the bank, in its general frame, character, and objects, was a proper instrument to carry into effect the powers of the government, but whether the particular powers, direct or incidental, conferred on a particular bank, were better calculated than all others to give success to its operations. For if not, then the charter, according to this sort of reasoning, would be unwarranted by the Const.i.tution. This mode of construing the Const.i.tution is certainly a novel discovery. Its merits belong entirely to the President and his advisers. According to this rule of interpretation, if the President should be of opinion, that the capital of the bank was larger, by a thousand dollars, than it ought to be; or that the time for the continuance of the charter was a year too long; or that it was unnecessary to require it, under penalty, to pay specie; or needless to provide for punishing, as forgery, the counterfeiting of its bills,--either of these reasons would be sufficient to render the charter, in his opinion, unconst.i.tutional, invalid, and nugatory. This is a legitimate conclusion from the argument. Such a view of the subject has certainly never before been taken. This train of reasoning has. .h.i.therto not been heard within the halls of Congress, nor has any one ventured upon it before the tribunals of justice. The first exhibition, its first appearance, as an argument, is in a message of the President of the United States.

According to that mode of construing the Const.i.tution which was adopted by Congress in 1791, and approved by Washington, and which has been sanctioned by the judgment of the Supreme Court, and affirmed by the practice of nearly forty years, the question upon the const.i.tutionality of the bank involves two inquiries. First, whether a bank, in its general character, and with regard to the general objects with which banks are usually connected, be, in itself, a fit means, a suitable instrument, to carry into effect the powers granted to the government.

If it be so, then the second, and the only other question is, whether the powers given in a particular charter are appropriate for a bank. If they are powers which are appropriate for a bank, powers which Congress may fairly consider to be useful to the bank or the country, then Congress may confer these powers; because the discretion to be exercised in framing the const.i.tution of the bank belongs to Congress. One man may think the granted powers not indispensable to the particular bank; another may suppose them injudicious, or injurious; a third may imagine that other powers, if granted in their stead, would be more beneficial; but all these are matters of expediency, about which men may differ; and the power of deciding upon them belongs to Congress.

I again repeat, Sir, that if, for reasons of this kind, the President sees fit to negative a bill, on the ground of its being inexpedient or impolitic, he has a right to do so. But remember, Sir, that we are now on the const.i.tutional question; remember that the argument of the President is, that, because powers were given to the bank by the charter of 1816 which he thinks unnecessary, that charter is unconst.i.tutional.

Now, Sir, it will hardly be denied, or rather it was not denied or doubted before this message came to us, that, if there was to be a bank, the powers and duties of that bank must be prescribed in the law creating it. n.o.body but Congress, it has been thought, could grant these powers and privileges, or prescribe their limitations. It is true, indeed, that the message pretty plainly intimates, that the President should have been _first_ consulted, and that he should have had the framing of the bill; but we are not yet accustomed to that order of things in enacting laws, nor do I know a parallel to this claim, thus now brought forward, except that, in some peculiar cases in England, highly affecting the royal prerogative, the a.s.sent of the monarch is necessary before either the House of Peers, or his Majesty's faithful Commons, are permitted to act upon the subject, or to entertain its consideration. But supposing, Sir, that our accustomed forms and our republican principles are still to be followed, and that a law creating a bank is, like all other laws, to originate with Congress, and that the President has nothing to do with it till it is presented for his approval, then it is clear that the powers and duties of a proposed bank, and all the terms and conditions annexed to it, must, in the first place, be settled by Congress.

This power, if const.i.tutional at all, is only const.i.tutional in the hands of Congress. Anywhere else, its exercise would be plain usurpation. If, then, the authority to decide what powers ought to be granted to a bank belong to Congress, and Congress shall have exercised that power, it would seem little better than absurd to say, that its act, nevertheless would be unconst.i.tutional and invalid, if, in the opinion of a third party, it had misjudged, on a question of expediency, in the arrangement of details. According to such a mode of reasoning, a mistake in the exercise of jurisdiction takes away the jurisdiction. If Congress decide right, its decision may stand; if it decide wrong, its decision is nugatory; and whether its decision be right or wrong, another is to judge, although the original power of making the decision must be allowed to be exclusively in Congress. This is the end to which the argument of the message will conduct its followers.

Sir, in considering the authority of Congress to invest the bank with the particular powers granted to it, the inquiry is not, and cannot be, how appropriate these powers are, but whether they be at all appropriate; whether they come within the range of a just and honest discretion; whether Congress may fairly esteem them to be necessary. The question is not, Are they the fittest means, the best means? or whether the bank might not be established without them; but the question is, Are they such as Congress, _bona fide_, may have regarded as appropriate to the end? If any other rule were to be adopted, nothing could ever be settled. A law would be const.i.tutional to-day and unconst.i.tutional to-morrow. Its const.i.tutionality would altogether depend upon individual opinion on a matter of mere expediency. Indeed, such a case as that is now actually before us. Mr. Madison deemed the powers given to the bank, in its present charter, proper and necessary. He held the bank, therefore, to be const.i.tutional. But the present President, not acknowledging that the power of deciding on these points rests with Congress, nor with Congress and the then President, but setting up his own opinion as the standard, declares the law now in being unconst.i.tutional, because the powers granted by it are, in his estimation, not necessary and proper. I pray to be informed, Sir, whether, upon similar grounds of reasoning, the President's own scheme for a bank, if Congress should do so unlikely a thing as to adopt it, would not become unconst.i.tutional also, if it should so happen that his successor should hold his bank in as light esteem as he holds those established under the auspices of Washington and Madison?

If the reasoning of the message be well founded, it is clear that the charter of the existing bank is not a law. The bank has no legal existence; it is not responsible to government; it has no authority to act; it is incapable of being an agent; the President may treat it as a nullity to-morrow, withdraw from it all the public deposits, and set afloat all the existing national arrangements of revenue and finance.

It is enough to state these monstrous consequences, to show that the doctrine, principles, and pretensions of the message are entirely inconsistent with a government of laws. If that which Congress has enacted, and the Supreme Court has sanctioned, be not the law of the land, then the reign of law has ceased, and the reign of individual opinion has already begun.

The President, in his commentary on the details of the existing bank charter, undertakes to prove that one provision, and another provision, is not necessary and proper; because, as he thinks, the same objects proposed to be accomplished by them might have been better attained in another mode; and therefore such provisions are not necessary, and so not warranted by the Const.i.tution. Does not this show, that, according to his own mode of reasoning, his _own_ scheme would not be const.i.tutional, since another scheme, which probably most people would think a better one, might be subst.i.tuted for it? Perhaps, in any bank charter, there may be no provisions which may be justly regarded as absolutely indispensable; since it is probable that for any of them some others might be subst.i.tuted. No bank, therefore, ever could be established; because there never has been, and never could be, any charter, of which every provision should appear to be indispensable, or necessary and proper, in the judgment of every individual. To admit, therefore, that there may be a const.i.tutional bank, and yet to contend for such a mode of judging of its provisions and details as the message adopts, involves an absurdity. Any charter which may be framed may be taken up, and each power conferred by it successively denied, on the ground, that, in regard to each, either no such power is "necessary or proper" in a bank, or, which is the same thing in effect, some other power might be subst.i.tuted for it, and supply its place. That can never be necessary, in the sense in which the message understands that term, which may be dispensed with; and it cannot be said that any power may not be dispensed with, if there be some other which might be subst.i.tuted for it, and which would accomplish the same end. Therefore, no bank could ever be const.i.tutional, because none could be established which should not contain some provisions which might have been omitted, and their place supplied by others.

Mr. President, I have understood the true and well-established doctrine to be, that, after it has been decided that it is competent for Congress to establish a bank, then it follows that it may create such a bank as it judges, in its discretion, to be best, and invest it with all such power as it may deem fit and suitable; with this limitation, always, that all is to be done in the _bona fide_ execution of the power to create a bank. If the granted powers are appropriate to the professed end, so that the granting of them cannot be regarded as usurpation of authority by Congress, or an evasion of const.i.tutional restrictions, under color of establishing a bank, then the charter is const.i.tutional, whether these powers be thought indispensable by others or not, or whether even Congress itself deemed them absolutely indispensable, or only thought them fit and suitable, or whether they are more or less appropriate to their end. It is enough that they are appropriate; it is enough that they are suited to produce the effects designed; and no comparison is to be inst.i.tuted, in order to try their const.i.tutionality, between them and others which may be suggested. A case a.n.a.logous to the present is found in the const.i.tutional power of Congress over the mail.

The Const.i.tution says no more than that "Congress shall have power to establish post-offices and post-roads"; and, in the general clause, "all powers necessary and proper" to give effect to this. In the execution of this power, Congress has protected the mail, by providing that robbery of it shall be punished with death. Is this infliction of capital punishment const.i.tutional? Certainly it is not, unless it be both "proper and necessary." The President may not think it necessary or proper; the law, then, according to the system of reasoning enforced by the message, is of no binding force, and the President may disobey it, and refuse to see it executed.

The truth is, Mr. President, that if the general object, the subject-matter, properly belong to Congress, all its incidents belong to Congress also. If Congress is to establish post-offices and post-roads, it may, for that end, adopt one set of regulations or another; and either would be const.i.tutional. So the details of one bank are as const.i.tutional as those of another, if they are confined fairly and honestly to the purpose of organizing the inst.i.tution, and rendering it useful. One _bank_ is as const.i.tutional as another _bank_. If Congress possesses the power to make a bank, it possesses the power to make it efficient, and competent to produce the good expected from it. It may clothe it with all such power and privileges, not otherwise inconsistent with the Const.i.tution, as may be necessary, in its own judgment, to make it what government deems it should be. It may confer on it such immunities as may induce individuals to become stockholders, and to furnish the capital; and since the extent of these immunities and privileges is matter of discretion, and matter of opinion, Congress only can decide it, because Congress alone can frame or grant the charter. A charter, thus granted to individuals, becomes a contract with them, upon their compliance with its terms. The bank becomes an agent, bound to perform certain duties, and ent.i.tled to certain stipulated rights and privileges, in compensation for the proper discharge of these duties; and all these stipulations, so long as they are appropriate to the object professed, and not repugnant to any other const.i.tutional injunction, are entirely within the competency of Congress. And yet, Sir, the message of the President toils through all the commonplace topics of monopoly, the right of taxation, the suffering of the poor, and the arrogance of the rich, with as much painful effort, as if one, or another, or all of them, had something to do with the const.i.tutional question.

What is called the "monopoly" is made the subject of repeated rehearsal, in terms of special complaint. By this "monopoly," I suppose, is understood the restriction contained in the charter, that Congress shall not, during the twenty years, create another bank. Now, Sir, let me ask, Who would think of creating a bank, inviting stockholders into it, with large investments, imposing upon it heavy duties, as connected with the government, receiving some millions of dollars as a _bonus_ or premium, and yet retaining the power of granting, the next day, another charter, which would destroy the whole value of the first? If this be an unconst.i.tutional restraint on Congress, the Const.i.tution must be strangely at variance with the dictates both of good sense and sound morals. Did not the first Bank of the United States contain a similar restriction? And have not the States granted bank charters with a condition, that, if the charter should be accepted, they would not grant others? States have certainly done so; and, in some instances, where no _bonus_ or premium was paid at all; but from the mere desire to give effect to the charter, by inducing individuals to accept it and organize the inst.i.tution. The President declares that this restriction is not necessary to the efficiency of the bank; but that is the very thing which Congress and his predecessor in office were called on to decide, and which they did decide, when the one pa.s.sed and the other approved the act. And he has now no more authority to p.r.o.nounce his judgment on that act than any other individual in society. It is not his province to decide on the const.i.tutionality of statutes which Congress has pa.s.sed, and his predecessors approved.

There is another sentiment in this part of the message, which we should hardly have expected to find in a paper which is supposed, whoever may have drawn it up, to have pa.s.sed under the review of professional characters. The message declares, that this limitation to create no other bank is unconst.i.tutional, because, although Congress may use the discretion vested in them, "they may not limit the discretion of their successors." This reason is almost too superficial to require an answer.

Every one at all accustomed to the consideration of such subjects knows that every Congress can bind its successors to the same extent that it can bind itself. The power of Congress is always the same; the authority of law always the same. It is true, we speak of the Twentieth Congress and the Twenty-first Congress, but this is only to denote the period of time, or to mark the successive organizations of the House of Representatives under the successive periodical election of its members.

As a politic body, as the legislative power of the government, Congress is always continuous, always identical. A particular Congress, as we speak of it, for instance, the present Congress, can no farther restrain itself from doing what it may choose to do at the next session, than it can restrain any succeeding Congress from doing what it may choose. Any Congress may repeal the act or law of its predecessor, if in its nature it be repealable, just as it may repeal its own act; and if a law or an act be irrepealable in its nature, it can no more be repealed by a subsequent Congress than by that which pa.s.sed it. All this is familiar to everybody. And Congress, like every other legislature, often pa.s.ses acts which, being in the nature of grants or contracts, are irrepealable ever afterwards. The message, in a strain of argument which it is difficult to treat with ordinary respect, declares that this restriction on the power of Congress, as to the establishment of other banks, is a palpable attempt to amend the Const.i.tution by an act of legislation. The reason on which this observation purports to be founded is, that Congress, by the Const.i.tution, is to have exclusive legislation over the District of Columbia; and when the bank charter declares that Congress will create no new bank within the District, it annuls this power of exclusive legislation! I must say, that this reasoning hardly rises high enough to ent.i.tle it to a pa.s.sing notice. It would be doing it too much credit to call it plausible. No one needs to be informed that exclusive power of legislation is not unlimited power of legislation; and if it were, how can that legislative power be unlimited that cannot restrain itself, that cannot bind itself by contract? Whether as a government or as an individual, that being is fettered and restrained which is not capable of binding itself by ordinary obligation. Every legislature binds itself, whenever it makes a grant, enters into a contract, bestows an office, or does any other act or thing which is in its nature irrepealable. And this, instead of detracting from its legislative power, is one of the modes of exercising that power. The legislative power of Congress over the District of Columbia would not be full and complete, if it might not make just such a stipulation as the bank charter contains.

As to the taxing power of the States, about which the message says so much, the proper answer to all it says is, that the States possess no power to tax any instrument of the government of the United States. It was no part of their power before the Const.i.tution, and they derive no such power from any of its provisions. It is nowhere given to them.

Could a State tax the _coin_ of the United States at the mint? Could a State lay a stamp tax on the process of the courts of the United States, and on custom-house papers? Could it tax the transportation of the mail, or the ships of war, or the ordnance, or the muniments of war, of the United States? The reason that these cannot be taxed by a State is, that they are means and instruments of the government of the United States.

The establishment of a bank exempt from State taxation takes away no existing right in a State. It leaves it all it ever possessed. But the complaint is, that the bank charter does not _confer_ the power of taxation. This, certainly, though not a new, (for the same argument was urged here,) appears to me to be a strange, mode of a.s.serting and maintaining State rights. The power of taxation is a sovereign power; and the President and those who think with him are of opinion, in a given case, that this sovereign power should be conferred on the States by an act of Congress. There is, if I mistake not, Sir, as little compliment to State sovereignty in this idea, as there is of sound const.i.tutional doctrine. Sovereign rights held under the grant of an act of Congress present a proposition quite new in const.i.tutional law.

The President himself even admits that an instrument of the government of the United States ought not, as such, to be taxed by the States; yet he contends for such a power of taxing property connected with this instrument, and essential to its very being, as places its whole existence in the pleasure of the States. It is not enough that the States may tax all the property of all their own citizens, wherever invested or however employed. The complaint is, that the power of State taxation does not reach so far as to take cognizance over persons out of the State, and to tax them for a franchise lawfully exercised under the authority of the United States. Sir, when did the power of the States, or indeed of any government, go to such an extent as that? Clearly never. The taxing power of all communities is necessarily and justly limited to the property of its own citizens, and to the property of others, having a distinct local existence as property, within its jurisdiction; it does not extend to rights and franchises, rightly exercised, under the authority of other governments, nor to persons beyond its jurisdiction. As the Const.i.tution has left the taxing power of the States, so the bank charter leaves it. Congress has not undertaken either to take away, or to confer, a taxing power; nor to enlarge, or to restrain it; if it were to do either, I hardly know which of the two would be the least excusable.

I beg leave to repeat, Mr. President, that what I have now been considering are the President's objections, not to the policy or expediency, but to the const.i.tutionality, of the bank; and not to the const.i.tutionality of any new or proposed bank, but of the bank as it now is, and as it has long existed. If the President had declined to approve this bill because he thought the original charter unwisely granted, and the bank, in point of policy and expediency, objectionable or mischievous, and in that view only had suggested the reasons now urged by him, his argument, however inconclusive, would have been intelligible, and not, in its whole frame and scope, inconsistent with all well-established first principles. His rejection of the bill, in that case, would have been, no doubt, an extraordinary exercise of power; but it would have been, nevertheless, the exercise of a power belonging to his office, and trusted by the Const.i.tution to his discretion. But when he puts forth an array of arguments such as the message employs, not against the expediency of the bank, but against its const.i.tutional existence, he confounds all distinctions, mixes questions of policy and questions of right together, and turns all const.i.tutional restraints into mere matters of opinion. As far as its power extends, either in its direct effects or as a precedent, the message not only unsettles every thing which has been settled under the Const.i.tution, but would show, also, that the Const.i.tution itself is utterly incapable of any fixed construction or definite interpretation, and that there is no possibility of establishing, by its authority, any practical limitations on the powers of the respective branches of the government.

When the message denies, as it does, the authority of the Supreme Court to decide on const.i.tutional questions, it effects, so far as the opinion of the President and his authority can effect it, a complete change in our government. It does two things: first, it converts const.i.tutional limitations of power into mere matters of opinion, and then it strikes the judicial department, as an efficient department, out of our system.

But the message by no means stops even at this point. Having denied to Congress the authority of judging what powers may be const.i.tutionally conferred on a bank, and having erected the judgment of the President himself into a standard by which to try the const.i.tutional character of such powers, and having denounced the authority of the Supreme Court to decide finally on const.i.tutional questions, the message proceeds to claim for the President, not the power of approval, but the primary power, the power of originating laws. The President informs Congress, that _he_ would have sent them such a charter, if it had been properly asked for, as they ought to confer. He very plainly intimates, that, in his opinion, the establishment of all laws, of this nature at least, belongs to the functions of the executive government; and that Congress ought to have waited for the manifestation of the executive will, before it presumed to touch the subject. Such, Mr. President, stripped of their disguises, are the real pretences set up in behalf of the executive power in this most extraordinary paper.

Mr. President, we have arrived at a new epoch. We are entering on experiments, with the government and the Const.i.tution of the country, hitherto untried, and of fearful and appalling aspect. This message calls us to the contemplation of a future which little resembles the past. Its principles are at war with all that public opinion has sustained, and all which the experience of the government has sanctioned. It denies first principles; it contradicts truths, heretofore received as indisputable. It denies to the judiciary the interpretation of law, and claims to divide with Congress the power of originating statutes. It extends the grasp of executive pretension over every power of the government. But this is not all. It presents the chief magistrate of the Union in the att.i.tude of arguing away the powers of that government over which he has been chosen to preside; and adopting for this purpose modes of reasoning which, even under the influence of all proper feeling towards high official station, it is difficult to regard as respectable. It appeals to every prejudice which may betray men into a mistaken view of their own interests, and to every pa.s.sion which may lead them to disobey the impulses of their understanding. It urges all the specious topics of State rights and national encroachment against that which a great majority of the States have affirmed to be rightful, and in which all of them have acquiesced.

It sows, in an unsparing manner, the seeds of jealousy and ill-will against that government of which its author is the official head. It raises a cry, that liberty is in danger, at the very moment when it puts forth claims to powers heretofore unknown and unheard of. It affects alarm for the public freedom, when nothing endangers that freedom so much as its own unparalleled pretences. This, even, is not all. It manifestly seeks to inflame the poor against the rich; it wantonly attacks whole cla.s.ses of the people, for the purpose of turning against them the prejudices and the resentments of other cla.s.ses. It is a state paper which finds no topic too exciting for its use, no pa.s.sion too inflammable for its address and its solicitation.

Such is this message. It remains now for the people of the United States to choose between the principles here avowed and their government. These cannot subsist together. The one or the other must be rejected. If the sentiments of the message shall receive general approbation, the Const.i.tution will have perished even earlier than the moment which its enemies originally allowed for the termination of its existence. It will not have survived to its fiftieth year.

THE CHARACTER OF WASHINGTON

A SPEECH DELIVERED AT A PUBLIC DINNER IN THE CITY OF WASHINGTON ON THE 22D OF FEBRUARY, 1832, THE CENTENNIAL ANNIVERSARY OF WASHINGTON'S BIRTHDAY.

[On the 22d of February, 1832, being the centennial birthday of GEORGE WASHINGTON, a number of gentlemen, members of Congress and others, from different parts of the Union, united in commemorating the occasion by a public dinner in the city of Washington.

At the request of the Committee of Arrangements, Mr. Webster, then a Senator from Ma.s.sachusetts, occupied the chair. After the cloth was removed, he addressed the company in the following manner.]

I rise, Gentlemen, to propose to you the name of that great man, in commemoration of whose birth, and in honor of whose character and services, we are here a.s.sembled.

I am sure that I express a sentiment common to every one present, when I say that there is something more than ordinarily solemn and affecting in this occasion.

We are met to testify our regard for him whose name is intimately blended with whatever belongs most essentially to the prosperity, the liberty, the free inst.i.tutions, and the renown of our country. That name was of power to rally a nation, in the hour of thick-thronging public disasters and calamities; that name shone, amid the storm of war, a beacon light, to cheer and guide the country's friends; it flamed, too, like a meteor, to repel her foes. That name, in the days of peace, was a loadstone, attracting to itself a whole people's confidence, a whole people's love, and the whole world's respect. That name, descending with all time, spreading over the whole earth, and uttered in all the languages belonging to the tribes and races of men, will for ever be p.r.o.nounced with affectionate grat.i.tude by every one in whose breast there shall arise an aspiration for human rights and human liberty.

We perform this grateful duty, Gentlemen, at the expiration of a hundred years from his birth, near the place, so cherished and beloved by him, where his dust now reposes, and in the capital which bears his own immortal name.

All experience evinces that human sentiments are strongly influenced by a.s.sociations. The recurrence of anniversaries, or of longer periods of time, naturally freshens the recollection, and deepens the impression, of events with which they are historically connected. Renowned places, also, have a power to awaken feeling, which all acknowledge. No American can pa.s.s by the fields of Bunker Hill, Monmouth, and Camden, as if they were ordinary spots on the earth's surface. Whoever visits them feels the sentiment of love of country kindling anew, as if the spirit that belonged to the transactions which have rendered these places distinguished still hovered round, with power to move and excite all who in future time may approach them.

But neither of these sources of emotion equals the power with which great moral examples affect the mind. When sublime virtues cease to be abstractions, when they become embodied in human character, and exemplified in human conduct, we should be false to our own nature, if we did not indulge in the spontaneous effusions of our grat.i.tude and our admiration. A true lover of the virtue of patriotism delights to contemplate its purest models; and that love of country may be well suspected which affects to soar so high into the regions of sentiment as to be lost and absorbed in the abstract feeling, and becomes too elevated or too refined to glow with fervor in the commendation or the love of individual benefactors. All this is unnatural. It is as if one should be so enthusiastic a lover of poetry, as to care nothing for Homer or Milton; so pa.s.sionately attached to eloquence as to be indifferent to Tully and Chatham; or such a devotee to the arts, in such an ecstasy with the elements of beauty, proportion, and expression, as to regard the masterpieces of Raphael and Michael Angelo with coldness or contempt. We may be a.s.sured, Gentlemen, that he who really loves the thing itself, loves its finest exhibitions. A true friend of his country loves her friends and benefactors, and thinks it no degradation to commend and commemorate them. The voluntary outpouring of the public feeling, made to-day, from the North to the South, and from the East to the West, proves this sentiment to be both just and natural. In the cities and in the villages, in the public temples and in the family circles, among all ages and s.e.xes, gladdened voices to-day bespeak grateful hearts and a freshened recollection of the virtues of the Father of his Country. And it will be so, in all time to come, so long as public virtue is itself an object of regard. The ingenuous youth of America will hold up to themselves the bright model of Washington's example, and study to be what they behold; they will contemplate his character till all its virtues spread out and display themselves to their delighted vision; as the earliest astronomers, the shepherds on the plains of Babylon, gazed at the stars till they saw them form into cl.u.s.ters and constellations, overpowering at length the eyes of the beholders with the united blaze of a thousand lights.