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IS THE CONSTITUTION A COMPACT?

407

in its opinion that act was unconstitutional, was a "direct usurpation of the just powers of the government and of the equal rights of their States; a plain violation of the Constitution and proceedings essentially revolutionary in its character and tendency." Whether the Constitution was a compact in its sovereign capacity was a question, Webster maintained, which must be mainly argued from what is contained in the instrument itself. This declared itself to be a Constitution, "not a league, compact or confederacy, but a fundamental law." To espouse the doctrines of nullification was to reject the first great principle of republican government, that the majority must govern.1 Nullification, therefore, meant secession, sesession would be revolution and must terminate in the destruction of the Union. The great issue whether the Union was a Confederacy or a Nation was compromised, but not settled at this time. The Compromise of 1833, neither convinced the nullifiers that they were wrong, nor established beyond doubt in the public mind the national character of the general government. Clay's compromise tariff act2 so modified the duties imposed by the act of 1832, as to amount in the opinion of aggressive Northerners almost to a surrender of the policy of protection, and to that degree to acknowledge the right of nullification. The force bill passed on the same day of Clay's compromise and constituted the national part of the general action, but went no further than particularly to authorize the President to execute the laws. To that extent it supported the President's proclamation and Webster's theory of the Union. But there was a more ragged edge to the Compromise of '33, than to that of 1820. It was

1 Webster's speech in reply to Calhoun, February 16, 1833; Works, III, 451, et seq.

2 March 2, 1833; Statutes at Large, IV, 629.

408

JACKSON'S THEORY OF THE CONSTITUTION.

more difficult to harmonize contending factions. The reason is not far to seek; at the time of the Missouri Compromise, the question at issue was comparatively abstract; the right of the general government to impose conditions on a territory or a new State. The issue now was largely concrete and administrative; economic, if you please, and therefore, more difficult to compromise. It will always be an interesting question whether the Union was continued in 1833, rather by means of the compromise measure of Clay than by the executive vigor of Jackson.

Another issue involving constitutional powers was at the front at the time of the Compromise of '33. During Jackson's first term, he had given notice that he was opposed to re-chartering the United States bank, and thus precipitated a conflict with that powerful institution. In his message vetoing the act of re-charter, he took issue with the Supreme Court on the constitutionality of a national bank, and reached the conclusion held by Jefferson, when the question first came up, that a bank was neither necessary nor proper, adding that for Congress to transfer its legislative power to a bank was to violate the Constitution. The forcefulness with which Jackson had exposed the fallacies of nullification was almost counter-balanced now by his curious interpretation of the powers of the three departments. He claimed that each must be its own guide in its 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;" the obvious consequence of which theory was that either Congress or the President had as much right to decide upon the constitutionality of an act, and perhaps their decision should have as great weight, as that of the Su

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preme Court.1 "The opinion of the judges," continued this message, "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 Congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."2

This was a novel theory of constitutional interpretation, but it consisted well with the individualism of Jeffersonian politics and appealed mightily to the party to which Jackson belonged. In the way in which he applied the doctrine it made him the most popular President the Nation has ever had. No one doubts the sincerity of Jackson's conviction, that the bank was dangerous to the safety of the government, hurtful to the morals of the people and unconstitutional. Preliminary to a systematic attack on the bank, he directed the Secretary of the Treasury no longer to deposit the money of the United States in the bank, but to deposit it in designated State banks. The Secretary refused to carry out the order and the President appointed his successor, Roger B. Taney, who speedily complied with the order, and defended its execution on the general ground of expediency.3

Jackson and his followers interpreted his re-election as a public approval of him and his policy, and as settling among other questions that of the constitutionality of the bank. But the Whigs, under the leadership of Clay, took up the issue and promptly began an investigation of the removal of the deposits. Clay denied the constitutional

1 See per contra, Webster, III, 416, 432.

2 Veto Message, July 10, 1832; Richardson, II, 582.

8 R. B. Taney, Secretary of the Treasury, December 4, 1833; Executive Document, No. 2, Vol. I, 1833-34.

4 December 26, 1833.

410

THE BANK CONTROVERSY.

authority of the President's action. Even if his re-election expressed the will of the people, it did not authorize him, Clay argued, to do such an unconstitutional act. Whig hostility took the form of two resolutions which Clay offered in the Senate. The first, declaring that the Constitution did not authorize the President to exercise the control over the Treasury Department which he had lately undertaken, and the second, pronouncing Taney's reason for the removal of the deposit wholly insufficient.1 A long debate followed, which repeated most that had been said at the time of the first bank controversy; the Democrats reiterating Jefferson's arguments and the Whigs reiterating Hamilton's.2 The friends of the bank took the President to task for violating the principle of contracts laid down by the Supreme Court in the Dartmouth College case, and in a more recent case, also decided by Chief-Justice Marshall. The immediate effect of the debate was a Whig resolution which the Senate adopted, censuring the President. Jackson made a vig orous protest to this left-handed method of impeachment.5 But the Senate ordered that the protest, though specially directed to it, should not be entered upon the journal. This decision was the beginning of a series of calamities to the Whig party. Jackson began a vigorous campaign of which the ostensible leader was Thomas H. Benton, which terminated three years later in expunging the Senate resolution from the journal. During these three years, the Senate was transformed into a Democratic body. The Whig leaders, and conspicuously Webster, protested against the unconstitutionality of a resolution

1 Benton's Debates, XII, 108.

21790. See p. 338, ante.

3 Dartmouth College vs. Woodward, 4 Wheaton, 518, (1819.)

4 Providence Bank vs. Billings, et al., 4 Peters, 514.

5 Jackson's Protest, April 15, 1834; Richardson, III, 69.

INTERNAL IMPROVEMENTS.

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that would thus alter the records, but the Democrats settled this point by passing the resolution to expunge, and carried it.1

The swift settlement of the West and the demand of its people for facilities for transportation had greatly strengthened the clamor for internal improvements at national expense. Clay was the mouthpiece of the supporters of the scheme, but the great obstacle in the way of its success was Jackson. Many Whigs were unable at the time to harmonize Jackson's national treatment of nullification with his repeated vetoes of internal improvement bills.2 The contradiction was not difficult to explain to one who remembered that Jackson at heart was an ardent disciple of the State sovereignty school, and believed that each State should control all matters directly within its own limits. In applying this creed he only followed the practice of the government since Jefferson's time, excepting in the interregnum of John Quincy Adams, and held persistently with Monroe to the notion that Congress possessed no power to establish a system of internal improvements. He went so far as early in his administration to give notice that no bill which proposed such improvements would receive his signature. He even went so far as to veto a bill which appropriated money from the national Treasury for internal improvements in a State which had consented to them, and after Congress had disclaimed any jurisdiction over them.3

But this strict view of the Constitution forbidding internal improvements enabled Jackson to advocate the distribution of the surplus in the Treasury among the States, in 1836. The apparent contradiction here disap

1 January 16, 1837; Benton's Debates, XIII, 155. 2 Richardson, II, 483, 493, 638; III, 118.

Veto Message, May 27, 1830; Richardson, II, 483.

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