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 vigorous 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.

4

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

4 Providence Bank vs. Billings, et al., 4 Peters, 514. Jackson's Protest, April 15, 1834; Richardson, III, 69.

INTERNAL IMPROVEMENTS.

411

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.

412

JACKSON ON THE SURPLUS.

pears when we reflect that Jackson always emphasized the equality of the States in their claims upon the general government. Jefferson, on one of the few occasions when there had been a surplus in the Treasury, asked for an amendment to empower Congress to expend it in public education or in internal improvements; Jackson followed the simpler and the more direct method prescribed by the State sovereignty theory of dividing the surplus pro rata among the States, and allowing each to expend it as it saw fit.1 Jackson's notions of the meaning of the Constitution were a factor which had to be reckoned with at a critical time in our history. In their broad outlines they agreed perfectly with the doctrine of residuary sovereignty in the State advocated by Hamilton and Marshall and sustained by the Supreme Court in later times.2 But he differed from his predecessors and from most of his successors in the quantity of residuary sovereignty imputed to it. The purpose of his administration may be said to have been to preserve that nice adjustment of sovereignty in the nation and residuary sovereignty in the States which the fathers had attempted in the Constitution.3

Jackson's successor, Van Buren, took occasion in his inaugural to comment on this nice balance of federal and State sovereignty, and to announce that its preservation would be the chief object of his administration. His opinions of the Constitution were an echo of Jackson's and he said officially, that he asked no more than that his own administration might continue Jackson's policy. One positive declaration rose above the commonplace of his in

1 See the note p. 514, post, of the distribution in Maine.

2 As in Texas vs. White, 7 Wallace, 700, (1868.)

3 Inaugural, March 4, 1829; Richardson, II, 439: Id., March 4, 1833; Id., III, 3.

RIGHT OF PETITION.

413

augural: his inflexible and uncompromising determination to oppose the abolition of slavery in the District of Columbia against the wishes of the slave-holding States, and to prevent the slightest interference with slavery in States where it existed.1 The slavocrats promptly seized on this declaration as a solemn promise on the part of Van Buren, to withstand every attempt of the abolitionists to petition Congress for the limitation or overthrow of slavery. His administration, therefore, is chiefly of interest as a period and almost the beginning of the struggle over the right of petition, when exercised for the abolition or restriction of slavery.

Calhoun boldly announced such petitions a violation of the federal compact,2 and throughout VanBuren's administration the pro-slavery party attempted, and practically succeeded in administering the government in accordance with Calhoun's theory of constitutional interpretation. The right of petition was too ancient and well settled to be long subjected to unlawful restraints, and

1 March 4, 1837; Richardson, III, 318; "Yet Van Buren was charged of being an abolitionist. I hope you will try and vindicate Mr. Martin Van Buren's character from the infamous charges of the white Whigs as they call themselves, on the subject of abolition," writes a North Carolina correspondent to Blair and Rives, in 1836: "They charge him with being an abolitionist, yet it is well known that friends of the abolitionists are not the friends of Martin Van Buren." "I suggest the propriety of your furnishing the Globe with a well written article which will show how many abolitionists there are in Congress and how many there are of them opposed to our Republican candidates, (Van Buren and Johnson) and also whom they support and whom the Federalists of the old school, the nullifiers and abolitionists and bank pensioners are trying to elevate to the Presidency." MS. letter, George W. Hufham, Rokfish, Duplin County, North Carolina, June 11, 1836.

2 See his resolutions of February 27, 1837, Benton's Debates, XIII, 567.