Part 66

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 Constitution. Does not this show, that, according to his own mode of reasoning, his _own_ scheme would not be constitutional, since another scheme, which probably most people would think a better one, might be substituted 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 substituted. 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 constitutional 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 substituted 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 substituted for it, and which would accomplish the same end. Therefore, no bank could ever be constitutional, 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 constitutional restrictions, under color of establishing a bank, then the charter is constitutional, 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 instituted, in order to try their constitutionality, between them and others which may be suggested. A case analogous to the present is found in the constitutional power of Congress over the mail. The Constitution 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 constitutional? 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 constitutional. So the details of one bank are as constitutional as those of another, if they are confined fairly and honestly to the purpose of organizing the institution, and rendering it useful. One _bank_ is as constitutional 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 Constitution, 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 entitled 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 constitutional 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 constitutional 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 unconstitutional restraint on Congress, the Constitution 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 institution. 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 passed and the other approved the act. And he has now no more authority to pronounce his judgment on that act than any other individual in society. It is not his province to decide on the constitutionality of statutes which Congress has passed, 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 passed under the review of professional characters. The message declares, that this limitation to create no other bank is unconstitutional, 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 passed it. All this is familiar to everybody. And Congress, like every other legislature, often passes 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 Constitution by an act of legislation. The reason on which this observation purports to be founded is, that Congress, by the Constitution, 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 entitle it to a passing 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 Constitution, 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 asserting 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 constitutional doctrine. Sovereign rights held under the grant of an act of Congress present a proposition quite new in constitutional 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 Constitution 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 constitutionality, of the bank; and not to the constitutionality 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 Constitution 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 constitutional existence, he confounds all distinctions, mixes questions of policy and questions of right together, and turns all constitutional 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 Constitution, but would show, also, that the Constitution 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 constitutional 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 constitutional 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 constitutionally conferred on a bank, and having erected the judgment of the President himself into a standard by which to try the constitutional character of such powers, and having denounced the authority of the Supreme Court to decide finally on constitutional 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 Constitution 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 attitude 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 passion 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 classes of the people, for the purpose of turning against them the prejudices and the resentments of other classes. It is a state paper which finds no topic too exciting for its use, no passion 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 Constitution 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 Massachusetts, 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 assembled.

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 institutions, 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 pronounced with affectionate gratitude 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 associations. 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 pass 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.