Chapter C

MR. BENTON'S SPEECH IN REPLY TO MR. CLAY--EXTRACTS.

Mr. Clay had spoken on three successive days, being the last days of the year 1833. Mr. Benton followed him,--and seeing the advantage which was presented in the character of the resolve, and that of the speech in support of it, all bearing the impress of a criminal proceeding, without other result than to procure a sentence of condemnation against the President for violating the laws and the constitution, endangering the public liberty and establishing a tyranny,--he took up the proceeding in that sense; and immediately turned all the charges against the resolution itself and its mover, as a usurpation of the rights of the House of Representatives in originating an impeachment, and a violation of law and constitution in trying it _ex parte_; and said:

"The first of these resolutions contained impeachable matter,
and was in fact, though not in form, a direct impeachment of the
President of the United States. He recited the constitutional
provision, that the President might be impeached--1st, for
treason; 2d, for bribery; 3d, for high crimes; 4th, for
misdemeanors; and said that the first resolution charged both a
high crime and a misdemeanor upon the President; a high crime,
in violating the laws and constitution, to obtain a power over
the public treasure, to the danger of the liberties of the
people; and a misdemeanor, in dismissing the late Secretary
of the Treasury from office. Mr. B. said that the terms of
the resolution were sufficiently explicit to define a high
crime, within the meaning of the constitution, without having
recourse to the arguments and declarations used by the mover in
illustration of his meaning; but, if any doubt remained on that
head, it would be removed by the whole tenor of the argument,
and especially that part of it which compared the President's
conduct to that of Cæsar, in seizing the public treasure, to aid
him in putting an end to the liberties of his country; and every
senator, in voting upon it, would vote as directly upon the
guilt or innocence of the President, as if he was responding to
the question of guilty or not guilty, in the concluding sentence
of a formal impeachment.

"We are, then, said Mr. B., trying an impeachment! But how?
The constitution gives to the House of Representatives the
sole power to originate impeachments; yet we originate this
impeachment ourselves. The constitution gives the accused a
right to be present; but he is not here. It requires the Senate
to be sworn as judges; but we are not so sworn. It requires the
Chief Justice of the United States to preside when the President
is tried; but the Chief Justice is not presiding. It gives the
House of Representatives a right to be present, and to manage
the prosecution; but neither the House nor its managers are
here. It requires the forms of criminal justice to be strictly
observed; yet all these forms are neglected and violated. It is
a proceeding in which the First Magistrate of the republic is to
be tried without being heard, and in which his accusers are to
act as his judges!

"Mr. B. called upon the Senate to consider well what they did
before they proceeded further in the consideration of this
resolution. He called upon them to consider what was due to the
House of Representatives, whose privilege was invaded, and who
had a right to send a message to the Senate, complaining of the
proceeding, and demanding its abandonment. He conjured them to
consider what was due to the President, who was thus to be tried
in his absence for a most enormous crime; what was due to the
Senate itself, in thus combining the incompatible characters
of accusers and judges, and which would itself be judged by
Europe and America. He dwelt particularly on the figure which
the Senate would make in going on with the consideration of
this resolution. It accused the President of violating the
constitution; and itself committed twenty violations of the
same constitution in making the accusation! It accused him of
violating a single law, and itself violated all the laws of
criminal justice in prosecuting him for it. It charged him
with designs dangerous to the liberties of the citizens, and
immediately trampled upon the rights of all citizens, in the
person of their Chief Magistrate.

"Mr. B. descanted upon the extraordinary organization of the
Senate, and drew an argument from it in favor of the reserve
and decorum of their proceedings. The Senate were lawgivers,
and ought to respect the laws already made; they were the
constitutional advisers of the President, and should observe,
as nearly as possible, the civil relations which the office
of adviser presumes; they might be his judges, and should be
the last in the world to stir up an accusation against him, to
prejudge his guilt, or to attack his character with defamatory
language. Decorum, the becoming ornament of every functionary,
should be the distinguishing trait of an American senator,
who combines, in his own office, the united dignities of the
executive, the legislative, and the judicial character. In his
judicial capacity especially, he should sacrifice to decorum
and propriety; and shun, as he would the contagious touch of
sin and pestilence, the slightest approach to the character
of prosecutor. He referred to British parliamentary law to
show that the Lords could not join in an accusation, because
they were to try it; but here the Senate was sole accuser,
and had nothing from the House of Representatives to join; but
made the accusation out and out, and tried it themselves. He
said the accusation was a double one--for a high crime and a
misdemeanor--and the latter a more flagrant proceeding than the
former; for it assumed to know for what cause the President had
dismissed his late Secretary, and undertook to try the President
for a thing which was not triable or impeachable.

"From the foundation of the government, it had been settled
that the President's right to dismiss his secretaries resulted
from his constitutional obligation to see that the laws were
faithfully executed. Many Presidents had dismissed secretaries,
and this was the first time that the Senate had ever undertaken
to found an impeachment upon it, or had assumed to know the
reasons for which it was done.

"Mr. B. said that two other impeachments seemed to be going on,
at the same time, against two other officers, the Secretary of
the Treasury and the Treasurer; so that the Senate was brimful
of criminal business. The Treasurer and the Secretary of the
Treasury were both civil officers, and were both liable to
impeachment for misdemeanors in office; and great misdemeanors
were charged upon them. They were, in fact, upon trial, without
the formality of a resolution; and, if hereafter impeached by
the House of Representatives, the Senate, if they believed what
they heard, would be ready to pronounce judgment and remove them
from office, without delay or further examination.

"Mr. B. then addressed himself to the Vice-President (Mr. Van
Buren), upon the novelty of the scene which was going on before
him, and the great change which had taken place since he had
served in the Senate. He commended the peculiar delicacy and
decorum of the Vice-President himself, who, in six years'
service, in high party times, and in a decided opposition,
never uttered a word, either in open or secret session, which
could have wounded the feelings of a political adversary, if
he had been present and heard it. He extolled the decorum of
the opposition to President Adams' administration. If there
was one brilliant exception, the error was redeemed by classic
wit, and the heroic readiness with which a noble heart bared
its bosom to the bullets of those who felt aggrieved. Still
addressing himself to the Vice-President, Mr. B. said that if
he should receive some hits in the place where he sat, without
the right to reply, he must find consolation in the case of his
most illustrious predecessor, the great apostle of American
liberty (Mr. Jefferson), who often told his friends of the
manner in which he had been cut at when presiding over the
Senate, and personally annoyed by the inferior--no, young and
inconsiderate--members of the federal party.

"Mr. B. returned to the point in debate. The President, he
repeated, was on trial for a high crime, in seizing the public
treasure in violation of the laws and the constitution. Was
the charge true? Does the act which he has done deserve the
definition which has been put upon it? He had made up his own
mind that the public deposits ought to be removed from the
Bank of the United States. He communicated that opinion to the
Secretary of the Treasury; the Secretary refused to remove them;
the President removed him, and appointed a Secretary who gave
the order which he thought the occasion required. All this he
did in virtue of his constitutional obligation to see the laws
faithfully executed; and in obedience to the same sense of duty
which would lead him to dismiss a Secretary of War, or of the
Navy, who would refuse to give an order for troops to march,
or a fleet to sail. True, it is made the duty of the Secretary
of the Treasury to direct the removal of the deposits; but the
constitution makes it the duty of the President to see that the
Secretary performs his duty; and the constitution is as much
above law as the President is above the Secretary.

"The President is on trial for a misdemeanor--for dismissing his
Secretary without sufficient cause. To this accusation there
are ready answers: first, that the President may dismiss his
Secretaries without cause; secondly, that the Senate has no
cognizance of the case; thirdly, that the Senate cannot assume
to know for what cause the Secretary in question was dismissed.

"The Secretary of the Treasury is on trial. In order to get at
the President, it was found necessary to get at a gentleman
who had no voice on this floor. It had been found necessary to
assail the Secretary of the Treasury in a manner heretofore
unexampled in the history of the Senate. His religion, his
politics, his veracity, his understanding, his Missouri
restriction vote, had all been arraigned. Mr. B. said he would
leave his religion to the constitution of the United States,
Catholic as he was, and although 'the Presbyterian might cut
off his head the first time he went to mass;' for he could see
no other point to the anecdote of Cromwell and the capitulating
Catholics, to whom he granted the free exercise of their
religion, only he would cut off their heads if they went to
mass. His understanding he would leave to himself. The head
which could throw the paper which was taken for a stone on this
floor, but which was, in fact, a double-headed chain-shot fired
from a forty-eight pounder, carrying sails, masts, rigging,
all before it, was a head that could take care of itself. His
veracity would be adjourned to the trial which was to take
place for misquoting a letter of Secretary Crawford, and he
had no doubt would end as the charge did for suppressing a
letter which was printed _in extenso_ among our documents, and
withholding the name and compensation of an agent; when that
name and the fact of no compensation was lying on the table.
The Secretary of the Treasury was arraigned for some incidental
vote on the Missouri restriction, when he was a member of the
Maryland legislature. Mr. B. did not know what that vote was;
but he did know that a certain gentleman, who lately stood in
the relation of _sergeant_ to another gentleman, in a certain
high election, was the leader of the forces which deforced
Missouri of her place in the Union for the entire session which
he first attended (not served) in the Congress of the United
States. His politics could not be severely tried in the time
of the alien and sedition law, when he was scarce of age; but
were well tried during the late war, when he sided with his
country, and received the constant denunciations of that great
organ of federalism, the Federal Republican newspaper. For the
rest, Mr. B. admitted that the Secretary had voted for the
elder Adams to be President of the United States, but denied
the right of certain persons to make that an objection to him.
Mr. B. dismissed these personal charges, for the present, and
would adjourn their consideration until his (Mr. Taney's) trial
came on, for which the senator from Kentucky (Mr. Clay), stood
pledged; and after the trial was over, he had no doubt but
that the Secretary of the Treasury, although a Catholic and a
federalist, would be found to maintain his station in the first
rank of American gentlemen and American patriots.

"Mr. B. took up the serious charges against the Secretary:
that of being the mere instrument of the President in removing
the deposits, and violating the constitution and laws of the
land. How far he was this mere instrument, making up his mind,
in three days, to do what others would not do at all, might
be judged by every person who would refer to the opposition
papers for the division in the cabinet about the removal of
the deposits; and which constantly classed Mr. Taney, then the
Attorney General, on the side of removal. This classification
was correct, and notorious, and ought to exempt an honorable
man, if any thing could exempt him, from the imputation of being
a mere instrument in a great transaction of which he was a prime
counsellor. The fact is, he had long since, in his character of
legal adviser to the President, advised the removal of these
deposits; and when suddenly and unexpectedly called upon to take
the office which would make it his duty to act upon his own
advice, he accepted it from the single sense of honor and duty;
and that he might not seem to desert the President in flinching
from the performance of what he had recommended. His personal
honor was clean; his personal conduct magnanimous; his official
deeds would abide the test of law and truth.

"Mr. B. said he would make short work of long accusations,
and demolish, in three minutes, what had been concocting for
three months, and delivering for three days in the Senate. He
would call the attention of the Senate to certain clauses of
law, and certain treasury instructions which had been left out
of view, but which were decisive of the accusation against
the Secretary. The first was the clause in the bank charter,
which invested the Secretary with the power of transferring
the public funds from place to place. It was the 15th section
of the charter: he would read it. It enacted that whenever
required by the Secretary of the Treasury, the bank should give
the necessary facilities for transferring the public funds
from place to place, within the United States, or territories
thereof; and for distributing the same in payment of the public
creditors, &c.

"Here is authority to the Secretary to transfer the public
moneys from place to place, limited only by the bounds of the
United States and its territories; and this clause of three
lines of law puts to flight all the nonsense about the United
States Bank being the treasury, and the Treasurer being the
keeper of the public moneys, with which some politicians and
newspaper writers have been worrying their brains for the last
three months. In virtue of this clause, the Secretary of the
Treasury gave certain transfer drafts to the amount of two
millions and a quarter; and his legal right to give the draft
was just as clear, under this clause of the bank charter, as his
right to remove the deposits was under another clause of it. The
transfer is made by draft; a payment out of the treasury is made
upon a warrant; and the difference between a transfer draft and
a treasury warrant was a thing necessary to be known by every
man who aspired to the office of illuminating a nation, or of
conducting a criminal prosecution, or even of understanding what
he is talking about. They have no relation to each other. The
warrant takes the money out of the treasury: the draft transfers
it from point to point, for the purpose of making payment: and
all this attack upon the Secretary of the Treasury is simply
upon the blunder of mistaking the draft for the warrant.

"The senator from Kentucky calls upon the people to rise, and
drive the Goths from the capital. Who are those Goths? They
are General Jackson and the democratic party,--he just elected
President over the senator himself, and the party just been
made the majority in the House--all by the vote of the people.
It is their act that has put these Goths in possession of the
capital to the discomfiture of the senator and his friends; and
he ought to be quite sure that he felt no resentment at an event
so disastrous to his hopes, when he has indulged himself with so
much license in vituperating those whom the country has put over
him.

"The senator from Kentucky says the eyes and the hopes of the
country are now turned upon Congress. Yes, Congress is his
word, and I hold him to it. And what do they see? They see one
House of Congress--the one to which the constitution gives the
care of the purse, and the origination of impeachments, and
which is fresh from the popular elections: they see that body
with a majority of above fifty in favor of the President and
the Secretary of the Treasury, and approving the act which
the senator condemns. They see that popular approbation in
looking at one branch of Congress, and the one charged by the
constitution with the inquisition into federal grievances. In
the other branch they see a body far removed from the people,
neglecting its proper duties, seizing upon those of another
branch, converting itself into a grand inquest, and trying
offences which itself prefers; and in a spirit which bespeaks
a zeal quickened by the sting of personal mortification. He
says the country feels itself deceived and betrayed--insulted
and wronged--its liberties endangered--and the treasury robbed:
the representatives of the people in the other House, say the
reverse of all this--that the President has saved the country
from the corrupt dominion of a great corrupting bank, by taking
away from her the public money which she was using in bribing
the press, subsidizing members, purchasing the venal, and
installing herself in supreme political power.

"The senator wishes to know what we are to do? What is
our duty to do? I answer, to keep ourselves within our
constitutional duties--to leave this impeachment to the House of
Representatives--leave it to the House to which it belongs, and
to those who have no private griefs to avenge--and to judges,
each of whom should retire from the bench, if he happened to
feel in his heart the spirit of a prosecutor instead of a judge.
The Senate now tries General Jackson; it is subject to trial
itself--to be tried by the people, and to have its sentence
reversed."

The corner-stone of Mr. Clay's whole argument was, that the Bank of the United States was the treasury of the United States. This was his fundamental position, and utterly unfounded, and shown to be so by the fourteenth article of what was called the constitution of the bank. It was the article which provided for the establishment of branches of the mother institution, and all of which except the branch at Washington city, were to be employed, or not employed, as the directors pleased, as depositories of the public money; and consequently were not made so by any law of Congress. The article said:

"The directors of said corporation shall establish a competent
office of discount and deposit in the District of Columbia,
whenever any law of the United States shall require such an
establishment; also one such office of discount and deposit
in any State in which two thousand shares shall have been
subscribed, or may be held, whenever, upon application of the
legislature of such State, Congress may, by law, require the
same: Provided, The directors aforesaid shall not be bound
to establish such office before the whole of the capital of
the bank shall have been paid up. And it shall be lawful for
the directors of the said corporation to establish offices of
discount and deposit wheresoever they shall think fit, within
the United States or the territories thereof, to such persons,
and under such regulations, as they shall deem proper, not
being contrary to law, or the constitution of the bank. Or,
instead of establishing such offices, it shall be lawful for the
directors of the said corporation, from time to time, to employ
any other bank or banks, to be first approved by the Secretary
of the Treasury, at any place or places that they may deem
safe and proper, to manage and transact the business proposed
as aforesaid, other than for the purposes of discount, to be
managed and transacted by such officers, under such agreements,
and subject to such regulations, as they shall deem just and
proper.

"Mr. B. went on to remark upon this article, that it placed
the establishment of but one branch in the reach or power of
Congress, and that one was in the District of Columbia--in
a district of ten miles square--leaving the vast extent of
twenty-four States, and three Territories, to obtain branches
for themselves upon contingencies not dependent upon the will
or power of Congress; or requiring her necessities, or even her
convenience, to be taken into the account. A law of Congress
could obtain a branch in this district; but with respect to
every State, the establishment of the branch depended, first,
upon the mere will and pleasure of the bank; and, secondly, upon
the double contingency of a subscription, and a legislative
act, within the State. If then, the mother bank does not think
fit, for its own advantage, to establish a branch; or, if the
people of a State do not acquire 2,000 shares of the stock of
the bank, and the legislature, therefore, demand it, no branch
will be established in any State, or any Territory of the Union.
Congress can only require a branch, in any State, after two
contingencies have happened in the State; neither of them having
the slightest reference to the necessities, or even convenience,
of the federal government.

"Here, then, said Mr. B., is the Treasury established for the
United States! A Treasury which is to have an existence but
at the will of the bank, or the will of a State legislature,
and a few of its citizens, enough to own 2,000 shares of stock
worth $100 a share! A Treasury which Congress has no hand in
establishing, and cannot preserve after it is established; for
the mother bank, after establishing her branches, may shut
them up, or withdraw them. Such a thing has already happened.
Branches in the West have been, some shut up, some withdrawn;
and, in these cases, the Treasury was broken up, according to
the new-fangled conception of a national Treasury. No! said
Mr. B., the Federal bank is no more the Treasury of the United
States than the State banks are. One is just as much the
Treasury as the other; and made so by this very 14th fundamental
article of the constitution of the bank. Look at it! Look at
the alternative! Where branches are not established, the State
banks are to be employed!

"The Bank of the United States is to select the State bank; the
Secretary of the Treasury is to approve the selection; and if
he does so the State bank so selected, and so approved becomes
the keeper of the public moneys; it becomes the depository of
the public moneys; it transfers them; it pays them out; it does
every thing except make discounts for the mother bank and issue
notes; it does everything which the federal government wants
done; and that is nothing but what a bank of deposit can do. The
government makes no choice between State banks and branch banks.
They are all one to her. They stand equal in her eyes; they
stand equal in the charter of the bank itself; and the horror
that has now broken out against the State banks is a thing of
recent conception--a very modern impulsion; which is rebuked and
condemned by the very authority to which it traces its source.
Mr. B. said, the State banks were just as much made the federal
treasury by the bank charter, as the United States Bank itself
was: and that was sufficient to annihilate the argument which
now sets up the federal bank for the federal treasury. But the
fact was, that neither was made the Treasury; and it would be
absurd to entertain such an idea for an instant; for the federal
bank may surrender her charter, and cease to exist--it can do
so at any moment it pleases--the State banks may expire upon
their limitation; they may surrender; they may be dissolved in
many ways, and so cease to exist; and then there would be no
Treasury! What an idea, that the existence of the Treasury of
this great republic is to depend, not upon itself, but upon
corporations, which may cease to exist, on any day, by their own
will, or their own crimes."

The debates on this subject brought out the conclusion that the treasury of the United States had a legal, not a material existence--that the Treasurer having no buildings, and keepers, to hold the public moneys, resorted (when the treasury department was first established), to the collectors of the revenue, leaving the money in their hands until drawn out for the public service--which was never long, as the revenues were then barely adequate to meet the daily expenses of the government; afterwards to the first Bank of the United States--then to local banks; again to the second bank; and now again to local banks. In all these cases the keepers of the public moneys were nothing but keepers, being the mere agents of the Secretary of the treasury in holding the moneys which he had no means of holding himself. From these discussions came the train of ideas which led to the establishment of the independent treasury--that is to say, to the creation of officers, and the erection of buildings, to hold the public moneys.