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land, and at this interesting period. I rejoice that I have lived to see so much development of truth, so much progress of liberty, so much diffusion of virtue and happiness. And, through good report and evil report, it will be my consolation to be a citizen of a republic unequalled in the annals of the world for the freedom of its institutions, its high prosperity, and the prospects of good which yet lie before it. Our course, Gentlemen, is onward, straight onward, and forward. Let us not turn to the right hand nor to the left. Our path is marked out for us, clear, plain, bright, distinctly defined, like the milky way across the heavens. If we are true to our country, in our day and generation, and those who come after us shall be true to it also, assuredly, assuredly we shall elevate her to a pitch of prosperity and happiness, of honour and power, never yet reached by any nation beneath the Sun.
I NOW proceed, Sir, to a few remarks upon the President's constitutional objections to the bank; and I cannot forbear to say, in regard to them, that he appears to me to have assumed very extraordinary grounds of reasoning. He denies that the constitutionality of the bank is a settled question. If it be not, will it ever become so, or what disputed question ever can be Settled ? *
As early as 1791, after great deliberation, the first bank charter was passed by Congress, and approved by President Washington. It established an institution, 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 institution was established, and has been ever since in full operation. Now, Sir, the question of the power of Congress to create such institutions has been contested in every manner known to our Constitution 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 constitutionality; 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 constitutional 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? 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 assert 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 favour. 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 Constitution, 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 passed 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
8 The pages which follow under this heading are from a specch delivered in the Senate, July 11, 1832, on President Jackson's Veto of the bill rechartering the Bank of the United States. That speech is, I think, a highly instructive and important passage in Webster's great course of constitutional expositions; and I here reproduce what seem to me the main points of his argument. It is not easy to see how the President's reasonings in his veto message disser, in principle, from the nullification doctrines of South Carolina; but there is this to be said of General Jackson, that he was too honest to see the nullification element in those reasonings, and at the same time too patriotic and too determined in character to tolerate any overt act of nullisication in another.
9 President Jackson, within the first two years of his administration, made not less than two thousand removals from office, all in favour of his party. Then it was that the government entered upon the custom of using the whole system of federal offices as the bribes and rewards of political partisanship. Up to that time, the power of removal had been exercised only in a few extreme cases.
the authority of precedent be taken away? It has all along been
The abuse of it has since done more perhaps than any other one thing to corrupt and debauch our politics.
constitutional or not. He is not at liberty to disregard it; he is not at liberty to feel or affect “constitutional 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 passed through all the requisite forms, after it has received the requisite legislative sanction and the executive approval, the question of its constitutionality 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 unconstitutional, 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 constitutional tribunal of appeal, for the citizens, against both Congress and the executive, in regard to the constitutionality 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 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. 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 asserted 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 passed a law, and although the Supreme Court may have pronounced it constitutional, yet it is, nevertheless, no law at all, if he, in his good pleasure, sees sit 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 asserting such a claim to despotic power. It is no bank to be created, it is no law proposed to be
passed, which the President denounces; it is the law now exist. ing, passed by Congress, approved by President Madison, and £anctioned by a solemn judgment of the Supreme Court, which he now declares unconstitutional, and which, of course, so far as it may depend on him, cannot be executed. 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. There is another sentiment in this part of the message, which we should hardly have expected to sind 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 the 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 supersicial 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 elections 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 further 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 predecessors, 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