Stephen Arnold Douglas.

A brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas online

. (page 2 of 11)
Online LibraryStephen Arnold DouglasA brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas → online text (page 2 of 11)
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them, until in ten days there was not a specie-pay
ing bank in the country. The Federal Government
was instantly reduced to insolvency, without a dol
lar ; the State banks being unable to pay, and the


national banks holding on to the specie. Every
State became insolvent for the same reason, namely,
keeping deposits in the banks, and the banks all
failed. Merchants, insurance companies, all failed,
and there was universal bankruptcy, Federal, State,
and individual, throughout the length and breadth
of the land.

Mr. Yan Buren being President (1837) imme
diately issued a proclamation to assemble Congress
to provide a revenue, and in his message recom
mended to Congress his celebrated Sub-Treasury
scheme, which in the language of the day, proposed
to divorce the Government from all banking insti
tutions, and in place of them, as fiscal agents, to ap
point Assistant Treasurers of the United States in
the principal cities, who should receive and disburse
the public revenue, keeping it in the United States
Treasury, and making it a criminal ofience to re
ceive or pay any thing but gold or silver, loan any
public money, deposit it in any bank, or use it for
any but public purposes.

Calhoun joined Yan Buren, and dissolved his
connection with Clay and Webster on the Sub-
Treasury, and the Sub-Treasury then became the
issue between the Whigs and Democrats. The
banks and speculators all joined the Whigs. The


Sub-Treasury bill passed in 1838 or 1839, and thus
freed the Government from the banks.

It took the country many years to recover from
the general bankruptcy, and in 1840 the Whigs,
with Harrison and Tyler, appealed to the public to
make a change in the Government, charging the
Democratic party as responsible for all the evils
which had befallen the country ; that its policy
had broken the National Bank and the State banks,
and all the moneyed institutions of the country, and
brought universal bankruptcy to every man's door,
and crushed the merchants. The whole people be
ing convinced that no change could be for the worse,
financially speaking, determined to see if it could
be for the better. Mr. Yan Buren was defeated,
carrying but seven States two free, New Hamp
shire and Illinois, with five Southern, Virginia,
South Carolina, Alabama, Missouri, and Arkansas.

The Whig party having thus acquired the power,
proceeded to repeal the Sub-Treasury, and to char
ter a Bank of the United States, to take its place
as the fiscal agent of the Government. General
Harrison having died, Mr. Tyler became President,
and vetoed the bank charter, in accordance with
the principles which he had proclaimed during his
whole life. It is here to be remembered that Har-


rison and Tyler had been elected by the Whigs, but
the "Whigs during the election had sunk the bank
issue, keeping up their opposition to the Sub-Treas
ury as an issue, and this in order to get the votes
of the anti-bank Jackson men, who were opposed
to Mr. Yan Buren and to his Sub-Treasury policy.
But they revived the bank issue the moment they
had succeeded in getting power. Harrison and
Tyler were both against the bank. Mr. Tyler was
always an anti-bank man, but was opposed to the
Sub-Treasury. He therefore vetoed the bank char
ter, but signed the bill repealing the Sub-Treasury.
The popular argument against the Sub- Treasury
was, that it provided one currency for the people and
another for the Government ; that it increased the
patronage of the Federal Government, by the ap
pointment of sub-treasurers and agents at great cost,
to keep the money, which had been previously kept
by the banks for nothing ; that it would have the
effect of drawing all the gold and silver through
land offices and the customs into the Federal Treas
ury, there to be locked up beyond the reach of the
people, thus depriving the banks which furnished
the currency of the country from having any specie
basis with which to redeem their paper; that it
made an odious, unjust distinction between the em-


ployes of the Federal Government, who received
their pay in specie, and the workingmen throughout
the country, who received their wages in broken-
bank paper.

The argument in favor .was, that by requiring
all public dues to be paid in gold and silver, it cre
ated, a demand for specie, thus increased the specie
basis in our currency, and kept the gold in the
country by its constant circulation in being paid in
and out of the Treasury in all Federal operations,
in full accordance with the Constitution, which pro
hibits any other legal tender than gold and silver ;
that while the old system of depositing the public
money in banks stimulated speculation and over
trading by becoming a basis for increased bank
issues,- which stimulated additional importations,
and thus increased the surplus revenue in the banks
as the basis again for additional circulation, this
process constantly increasing and aggravating the
evils which had lead to the explosion, on the other
hand requiring gold and silver in payment of reve
nue, and keeping that revenue in the Treasury of
the country, produced a check upon the over-issues
of the banks, and tended to restrain the excesses of
speculation and overtrading, by withdrawing the
surplus revenue from the circulation of the country,


and confining the business of the country within its
legitimate limits, while at the same time it rendered
the Government independent of the banks, by al
ways placing and having its revenue within its own
keeping, not exposed to the danger of bank failures.
In addition to the repeal of the Sub-Treasury,
and the chartering of a National Bank, the Whigs
in 1842 passed a high protective tariff, carrying the
protective principle to a greater extent than had
ever been done in the history of the country, and
at the same time they withdrew their support from
Mr. Tyler and his administration, denouncing him
and his supporters as traitors to the Whig party for
having vetoed the bank, although he had signed their
bills for the repeal of the Sub-Treasury and for the
protective tariff. Upon the expiration of Mr. Tyler's
term of office the Democratic party again regained
possession of the Government on those distinct issues
by the election of ]tfr. Polk over Mr. Clay. It is
proper to remark, however, that during the last
years of Mr. Tyler's administration a treaty was
made with the Republic of Texas for the annexation
of that State to the Federal Union, which having
been rejected by the Senate became one of the issues
of the Presidential election, supported by the Dem
ocrats and opposed by the Whigs. It had not been


in the Senate, however, a party question. The old
fogies of the Democratic party joined with the
Whigs to reject the treaty.

Immediately after their accession to power the
Democratic party reestablished the Sub-Treasury
system and repealed the protective tariff of 1842,
and enacted in its place the revenue tariff of 1846,
and also annexed Texas and admitted it into the
Union, which gave rise to the Mexican war.

The country acquiesced in the financial policy
adopted by the Democratic party in 1846, since
which time the tariff has ceased to be a party ques
tion, the great majority of both parties now acqui
escing substantially in the revenue principle in an
tagonism to the protective policy, and the Sub-
Treasury having worked so satisfactorily as to re
ceive the support of all parties under every admin
istration which has succeeded, without opposition or
complaint. Here ends the financial chapter in our
history ! !


Art. I., Section 9, Clause 1. " The migration or impor
tation of such persons as any of the States now existing shall
think proper to admit, shall not be prohibited by the Congress
prior to the year one thousand eight hundred and eight, but a
tax or duty may be imposed on such importation not exceed
ing ten dollars for each person."

THE section of the Constitution authorizing the
prohibition of the African slave trade after the year
1808, had its origin in a disagreement between the
delegates in the convention which framed the Con
stitution. One party, particularly the delegates of
South Carolina and Georgia, demanded the instant
and unconditional prohibition of the African slave
trade on moral and religious grounds, while the dele
gates from the extreme South insisted that it was a
legitimate commerce, involving no other considera
tions than those of a sound public policy, which each


State ought to be permitted to determine for itself.
Each party adhered to its position resolutely, with
the distinct avowal that they would maintain it at
all hazards, until both became convinced that the
convention must break up without forming a Con
stitution, and the Confederacy divide into two or
more fractions, thus blotting out all the glories of the
Revolution, and destroying its benefits, unless a com
promise could be effected on the common ground of
.such mutual concessions as were necessary to pre
serve the Union, and independence of the States.
Such a compromise was effected, and incorporated
into the Constitution, by which it was understood
that the slave trade should continue a legitimate
commerce in those States which chose to sanction it,
until the year 1808, from and after which time Con
gress might, and would prohibit it forever through
out the limits of America, and pass all laws neces
sary to make such prohibition effectual. This was
the understanding with which this section was incor
porated into the Constitution.


Art. I., Sec. 9, Clause 2. " The privilege of the writ of
Habeas Corpus shall not he suspended, unless when in cases
of Eehellion or Invasion the public Safety may require it."

WE have to consider the suspension of the writ,
the power of anybody to suspend, except the Con
gress, and then only under the circumstances de
scribed, by the Constitution.

The most memorable case in our history of sus
pending the writ of habeas corpus without the au
thority of statute was in 1814, when General Jack
son was in command of the Southwest division of
the United States, and was engaged in repelling an
invasion of the British army under the command of
General Packenham. General Jackson established
his headquarters in the city of New Orleans, where
he found an immense number of foreigners (they


had recently come into the Union, and were French
and Spanish), who had no sympathy with the United
States, and were either friendly to the British, or
preparing to make terms with the enemy to save
their property. General Jackson suspected, among
others, a man by the name of Lonelier with being
a spy, and furnishing information to the British
commander. Relying upon these suspicions, which
he believed to be well founded, but without having
legal evidence of the fact, and, having to provide
for all this, previously declared martial law, he
arrested and imprisoned him, and his supposed con

Judge Hall, of the United States District Court,
issued a writ of habeas corpus for the release of
Lonelier, and directed Jackson to bring him before
the Court. To which Jackson replied by arresting
the Judge, and sending him outside of the limits of
the city, which he had previously declared to be un
der martial law.

About the same time General Jackson was in
formed and believed, that the Legislature of the
State of Louisiana, then in session in the city of
New Orleans, were about passing an act surrender
ing the city into the hands of the enemy ; and in
order to prevent such a result, he sent a detachment


of troops to surround the Legislative Hall, and hold
the members as prisoners in their own hall, cutting
off all communication with anybody except himself.
He then proceeded to meet the enemy, which he did,
first on the night of the 23d of December, 1814,
and, finally, on the 8th of January, 1815, won the
final battle, by which the British arrny were routed
and returned to their ships, peace having been
previously signed in Europe, and news of the fact
reaching E"ew Orleans after the battle. General
Jackson then withdrew his declaration of martial
law, and restored the civil authorities. He then de
livered himself up to the court, and was fined one
thousand dollars, which he immediately paid.

Afterwards, while General Jackson was Presi
dent of the United States, he would never permit
any of his friends to propose an act of Congress for
the remission of his fine ; but after he retired from
the Presidency such a proposition was introduced,
from time to time, until it passed eventually, at the
session of 1843, or 1844.

Pending the bill for the remission of the fine,
the opponents of General Jackson opposed the
measure, upon the ground that his declaration of
martial law and imprisonment of the civil author
ities was a violation of the Constitution of the


United States ; consequently that it was the duty of
Judge Hall to vindicate the dignity of his Court and
the civil authorities by arresting and imprisoning
him, and that the fine should not be refunded, for
the reason that it would be licensing and sanction
ing a violation of the Constitution, and cast a re
flection upon the Court for having performed its
solemn duty.

In reply, the friends of General Jackson had all
admitted the violation of the Constitution and laws
by the declaration of martial law, but justified the
act upon the ground that it was necessary to save
the city of New Orleans, and the State of Louisiana
from the ravages of the enemy. This necessity was
admitted by the other side, but still it was argued,
that having violated the Constitution, he must bear
the consequences, although governed by patriotic
motives. I was the first man who denied that Gen
eral Jackson violated the Constitution, by his decla
ration of martial law, and insisted that General
Jackson having been charged under the Consti
tution and laws with the preservation of the city of
New Orleans and the surrounding country from the
assaults of the enemy, was clothed with all the
power necessary to the performance of that duty ;
that by imposing a duty, the means necessary to its

performance were included, and if the declaration
of martial law was necessary and indispensable, as
was admitted on all hands, that necessity conferred
the authority and limited its extent and duration.
The authority went just so far as the necessity ex
tended, and ceased when it ceased.

John Quincy Adams, while he denied the neces
sity, admitted my argument, and though he voted
against refunding the fine, he censured those who,
believing in the necessity, also voted in the negative.
The money was refunded.

Art. I., Sec. 9, Clause 5. " No tax or duty shall be laid on
articles exported from any State."

For commercial purposes the whole United
States are one State, or commercial district. They
are not foreign to each other.

Art. L, Sec. 9, Clause 6. " No preference shall be given
by any regulation of commerce or revenue to the ports of one
State over those of another ; nor shall vessels bound to, or
from, one State, be obliged to enter, clear, or pay duties in

This clause means simply that duties shall not
be imposed simply because the vessel goes across the
State line, nor that on entering State ports the ves-


sel may not be obliged to pay the same duties of
tonnage, etc., as vessels of the 'State to which the
ports belong. See in this connection

Art. I., See. 10, Clause 3. " No State shall without the
consent of Congress" etc.

Hence I hold that a duty may be imposed for
river and harbor improvements, which question we
will here consider, together with that of internal



THE advocates of a system of internal improve
ments, by the Federal Government, do not agree
among themselves in respect to the clause of the
Constitution which confers the power. Some con
tend that the power exists under the clause for
" common defence and general welfare." The ad
vocates of the power under this clause are again
divided into those who claim it under the war
power for the common defence, and who limit its
exercise to such works as are necessary for the de
fence of the country, while others claim that Con
gress may make any road, canal, or other work of
internal improvement which is for the general wel
fare of the United States. Others again derive the
power from the clause which authorizes Congress
" to establish post-offices and post-roads ; " while the
general opinion among those who advocate internal


improvements by the General Government,' and es
pecially the friends of river and harbor improve
ments, claim to derive the power from the clause
which authorizes Congress " to regulate commerce
with foreign nations, and among the several States,
and with the Indian tribes."

I, and others, contend that it is wiser and better
to allow each State to improve its own rivers and
harbors ; that the " duty of tonnage" was inserted for
this express purpose, and for that reason, as asserted
in delate at the time, and the form originally was,
"that the States reserve the power for imposing
duties of tonnage." But it was suggested that this
would interfere with the power of Congress to regu
late commerce, which ought to be exclusive, and it
was then modified, as in the Constitution, so as to
read, " without the consent of Congress" so that the
States might not conflict with the general power of
Congress, hut that ivith the consent of Congress ', they
might lay duties of tonnage.

It is generally conceded now that under the pro
vision to provide for the general defence, Congress
may construct such military works and roads as are
necessary for that purpose, and are made for that
purpose, but must not, under pretence of general
defence, make artificial channels of commerce for


commercial, arid not military purposes. The gen
eral welfare power is generally abandoned. Post-
offices and post-roads are generally construed now, to
confer the right to designate the route over which
the mail shall go, ~but not to make the road. Under
the power to regulate commerce a majority believe
that Congress may improve rivers and harbors, but
they doubt the expediency. A majority do not yet
believe that the States may do so by means of

Calhoun spent the greater portion of his life in
advocating internal improvements. He proposed to
build an arched covered road from Buffalo to New
Orleans. He was a visionary ! No Statesman !

On the subject of internal improvements, I refer
you to the report of J. C. Calhoun, as Secretary of
War under Mr. Monroe, and the message of Mr.
Monroe in favor of a system of internal improve
ments under the General Government. See also
the veto messages of General Jackson upon the
Maysville road bill, in Kentucky, and upon the
Wabash River improvement bill ; the veto message
of President Polk upon the Eiver and Harbor Im
provement bill ; report of J. C. Calhoun to the Mem
phis Convention, upon the improvement of the
"Western rivers, in which he called them " inland


seas," and to the history of the internal improve
ment question in Wheeler's " Biographical Diction
ary of Congress."

In the beginning this question of internal im
provements was as much a Southern as a ISTorthern
one. In later periods the Democratic party of the
South opposed it, except where members had works
of improvement in their own districts. The Whig
party generally, North and South, were for the
system, and the Republicans, in 1856, endorsed the
River and Harbor improvement system.

I believe the power to improve navigation and
natural channels to exist, but not to construct arti
ficial ones. It has been held by the Supreme Court
that the Federal Government, under the Constitu
tion, by virtue of the power to regulate commerce,
has jurisdiction over all navigable waters, whether
within the States, or ~between, or upon the high seas.
Hence the right to improve that navigation does not
conflict with the reserved rights of the States, so
long as it is confined within the acknowledged juris
diction of the United States. But the right to con
struct canals and railroads, and other artificial chan
nels of commerce, within the limits of the several
States, presupposes the right to exercise jurisdiction
over the works thus constructed, which involves an


invasion of the jurisdiction and reserved rights of
the States.

The Federal Government has exercised legisla
tive jurisdiction over the navigable waters between
and within the States in a variety of cases, such as
the passage of laws regulating steamboats upon the
rivers and lakes, as well as upon tidewater, even in
cluding ferry-boats, and providing for the inspection
of their boilers, and granting certificates by Federal
agents of their capacity and soundness. This shows
that the Legislative Department recognize this juris
diction, as well as the Judiciary.

The common law had its origin in England. It
grew up from custom and immemorial usage. It
was a principle of the common law that the mari
time jurisdiction extended only so far as the tide
ebbs and flows, because beyond that, they in England
had no rivers or lakes which were navigable, and
therefore no commerce. The principle of law, thus,
merely conformed to the fact. "With us, we have
lakes and rivers navigable beyond the ebb and flow
of the tide, and while we have adopted the common
law, the Court has held that we may extend the
jurisdiction and legislate. We have legislated for
rivers and lakes beyond the ebb and flow of the tide.


though we have not extended admiralty and mari
time jurisdiction. We thus conform to the reality,
the principle, and not the name and the fact of the
English common law.



THE Convention had once agreed to fix the
Presidential term of office for seven years, and in
eligible. It was also proposed for life, for fifteen
or twenty years, and afterwards changed to four
years, and not made ineligible. General Washing
ton fixed the principle of not more than two terms,
and it has obtained the force of law.


Nothing said in the Constitution. In the early
years of the Government it was decided, and has
since been held, that the power of appointment in
volves the power of removal, in all cases where the
tenure of office is not prescribed in the Constitution.
This was so- fixed by discussion in the first Congress
of 1789, 1790, or 1791, in establishing some of the


Departments of the Government. It has also been
held, and universally acquiesced in, that in cases
where the appointment can only be made with the
advice and consent of the Senate, the removal can
be made by the President alone. The reason of this
decision is not apparent, but practice and universal
acquiescence have given it the force of law. Under
the power to fill vacancies during the recess of the
Senate, it has been held that the President cannot
make an original appointment to an office which has
been created by law but never filled. The commis
sion the President gives during the recess of the
Senate does not expire until the end of the next
session, so that if on assembling the Senate do not
confirm, he can wait until the end of their session,
and then reappoint ; the person appointed remain
ing in the mean time in the full and legal exercise
of his office. This course was pursued by General
Jackson when the Senate refused to confirm some
of his appointments.



Section 2. " The judicial power shall extend to all cases
of admiralty and maritime jurisdiction."

To those cases only which were then known to
the common and statute law, or to those also which
should be subsequently added by law ?

The better opinion is, that Congress may define
what cases come within admiralty and maritime

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Online LibraryStephen Arnold DouglasA brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas → online text (page 2 of 11)