CHAPTER VII.

Renewed Attempt of the Federalists to give the Judiciary a controlling power over the other Departments on the occasion of the Bank Veto by President Jackson— Importance of the Principle of a clear Division of Powers between the several Departments, and the Independence of each Assertion of the Principle by Jackson in his Veto Message — Unguarded expression therein Substantial Endorsement by Webster of Jackson's Doctrine as to the Independence of the Executive - Character of the Contest waged against Jackson on behalf of the Bank - Violent and disingenuous course of Webster and Clay in the Debate The true Doctrine declared by Senator White Its great Importance Merits of the Question discussed The Judgment of the People the ultimate Test Instances of the effectual exercise of that Judgment Distrust of the Federalist Leaders as to the Capacity of the People.

HE most imposing, and I may add the most impor

THE

tant occasion, unconnected with judicial proceedings, on which the successors of the old Federal party, encouraged by the success of the Supreme Court in modern times, sought to avail themselves of the principle of the controlling power of the judiciary over the other departments of the Government in regard to questions of constitutional power, for which it had early and long contended, was that of the veto of President Jackson against the passage of the bill for the incorporation of the Bank of the United States.

In addition to the great and permanent importance it is to the Government and the country to keep down this heresy, we have in this case a scarcely less potent inducement for giving the matter a very thorough consideration, founded in a desire to do justice to the conduct and character of that great and good man.

The division of the powers of the Federal Government into distinct and independent departments is founded on a principle the value of which has never been lost sight of by the framers of governments designed to be free. It must at the same time be admitted that, among the principles which necessarily enter into such a system, there are not many so difficult to define with desirable certainty or to uphold in practice. The faithful and capable men who constructed ours, state as well as national, have been as successful, I believe, in this respect as any who have gone before them; and the efforts which have been so perseveringly made to counteract their patriotic designs must be attributed to an inherent spirit of encroachment which is inseparable from power in whose hands soever it may be placed.

The veto message contained the following passage:"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coördinate authorities of this Government. The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the executive when acting in their

legislative capacities, but to have only such influence as the force of their reasoning may deserve."

To present an intelligible view of this matter, the gravity of which cannot fail to be appreciated as we proceed, it is necessary that we should in the first place ascertain and define the leading idea which its author intended to convey by the words he employed. The entire paragraph is replete with distinct avowals of his meaning, but in the midst of them are to be found a few words by which its true sense is exposed to cavil and perversion. This was a point upon which General Jackson was very liable to err, notwithstanding his natural and in other matters practiced wariness, a qualification with which few men were more amply endowed than himself. The spirit by which alone free governments can be sustained was deeply planted in his breast by the hand of Nature; quickened into life by the blows of the enemy, whilst a prisoner and yet a stripling, it grew with his growth and strengthened with his strength. But possessed of a mind that was ever dealing with the substance of things, he was not very careful in regard to the precise terms in which his principles were defined. He was, besides, at that moment placed in a peculiar as well as difficult situation. Whilst struggling with an institution which felt itself sufficiently powerful to measure strength with the Government, and which had been itself stung to madness by his refusal to submit to its arbitrary demands, he was deprived of the assistance of the leading members of his cabinet. The Secretary of the Treasury, to whose department the subject belonged, had, in his report to Congress, placed himself on record in favor of the bank, and the Secretaries of State and of War concurred in his opinion; all three openly disapproved of, and could not cordially coöperate in, the measure the President was about to adopt the Secretaries of the Treasury and

of War, as will be seen by the letters of General Jackson to myself, which on account of the interesting matters to which they relate will be given with these memoirs,1 pressing their opposition so far as to make it sufficient ground for proposing to retire from his cabinet a step they were with difficulty prevented from carrying into immediate effect. That a document of such length, prepared on the spur of the occasion and under such untoward and exciting circumstances, should not have been even more vulnerable to the assaults of his astute and implacable opponents, is not a little surprising.

Few had better opportunities for knowing the state of feeling which prevailed at the Presidential mansion, whilst this matter was in progress, than myself. I arrived at New York from my brief mission to England after the Bank Bill had passed both Houses and on the day it was sent to President Jackson for his approval, and left the next morning for Washington. Arriving there at midnight, I proceeded at once to the White House, in pursuance of an invitation he had sent to New York in anticipation of my coming. I found the General in bed, supported by pillows, in miserable health, but awake and awaiting and expecting me. Before suffering me to take a seat, and whilst still holding my hand he, with characteristic eagerness when in the execution of weighty concerns, spoke to me of the bank of the bill that had been sent for his approval, and of the satisfaction he derived from my arrival at so critical a moment; and I have not forgotten the gratification which beamed from his countenance when I expressed a hope. that he would veto it, and when I declared my opinion that it was in that way only he could discharge the great

1 The correspondence, including the letters of President Jackson, has received the same direction with the

other MSS. of the Author. See introduction to this volume. EDS.

duty he owed to the country and to himself. Not that he was ignorant of my views upon the subject, for in all our conversations in respect to it before I left the country,—and they had been frequent and anxious, my voice had been decided as well against the then existing, as against any other national bank. Neither that he was himself in doubt as to the course that he ought to pursue, for he entertained none. But the satisfaction he evinced, and which he expressed in the most gratifying terms, arose solely from the relief he derived from finding himself so cordially sustained in a step he had determined to take but in respect to which he had been severely harassed, by the stand taken by the leading members of his cabinet and by the remonstrances of many timid and not a few false friends, and had as yet been encouraged only by the few about him in comparatively subordinate positions who were alike faithful to principle and to himself.

The veto message was prepared and sent in whilst I remained at Washington. The manuscript was at all times open to my inspection, although I had but little direct agency in its construction. Had it been otherwise, the few words which subsequently made that part in which they appear so conspicuous could not have escaped my notice.

The paragraph in the message which sets forth the constitutional principles which President Jackson intended to avow, contains the following declarations 1st. That if the opinion of the Supreme Court covered the whole ground of the act under consideration, still it ought not to control the coördinate authorities of the Government. 2d. That the Congress, the Executive, and the Court must each for itself be guided by its own opinions of the Constitution. 3d. That it is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon any Bill or Resolution that may be presented to them for