Part 38 (1/2)
As early as 1791, after great deliberation, the first bank charter was pa.s.sed by Congress, and approved by President Was.h.i.+ngton. 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 Was.h.i.+ngton, 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 Was.h.i.+ngton 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 punis.h.i.+ng, 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 Was.h.i.+ngton, 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 Was.h.i.+ngton 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.