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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.