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period to which the existence of this institution was limited, it was nowise instrumental in the collection of that revenue, to which it is now become indispensable! The collection, previous to 1800, was made entirely by the collectors; and even at present, where there is one port of entry, at which this bank is employed, there are eight or ten at which the collection is made as it was before 1800. And, sir, what does this bank or its branches, where resort is had to it? It does not adjust with the merchant the amount of duty, nor take his bond; nor, if the bond is not paid, coerce the payment by distress or otherwise. In fact, it has no active agency whatever in the collection. Its operation is merely passive; that is, if the obligor, after his bond is placed in the bank, discharges it, all is very well. Such is the mighty aid afforded by this tax-gatherer, without which the government cannot get along! Again, it is not pretended that the very limited assistance which this institution does in truth render, extends to any other than a single species of tax, that is, duties. In the collection of the excise, the direct and other internal taxes, no aid was derived from any bank. It is true, in the collection of those taxes, the former did not obtain the same indulgence which the merchant receives in paying duties. But what obliges congress to give credit at all ? Could it not demand prompt payment of the duties? And, in fact, does it not so demand in many instances ? Whether credit is given or not is a matter merely of discretion. If it be a facility to mercantile operations (as I presume it is) it ought to be granted. But I deny the right to engraft upon it a bank, which you would not otherwise have the power to erect. You cannot create the necessity of a bank, and then plead that necessity for its establishment. In the administration of the finances, the bank acts simply as a payer and receiver. The secretary of the treasury has money in New York, and wants it in Charleston; the bank will furnish him wiib a check, or bill, to make the remittance, which any merchant would do just as well.
I will now proceed to show by fact, actual experience, not theoretic reasoning, but by the records of the treasury themselves, that the operations of that department may be as well conducted without as with this bank. The delusion has consisted in the use of certain high-sounding phrases, dexterously used on the occasion; the collection of the revenue,''the administration of the finance, 'the conducting of the fiscal affairs of the government,' the usual language of the advocates of the bank, extort express assent, or awe into acquiescence, without inquiry or examination into its necessity. About the commencement of this
appears, by the report of the secretary of the treasury, of the seventh of January, to have been a little upwards of two million and four hundred thousand dollars in the treasury of the United States; and more than one third of this whole sum was in the vaults of local banks. In several instances, where opportunities existed of selecting the bank, a preference has been given to the state bank, or at least a portion of the deposits has been made with it. In New York, for example, there were deposited with the Manhattan bank one hundred and eighty-eight thousand and six hundred and seventy dollars, although a branch bank is in that city. In this district, one hundred and fifteen thousand and eighty dollars were deposited with the bank of Columbia, although here also is a branch bank, and yet the state banks are utterly unsafe to be trusted! If the money, after the bonds are collected, is thus placed with these banks, I presume there can be no difficulty in placing the bonds themselves there, if they must be deposited with some bank for collection, which I deny.
Again, one of the most important and complicated branches of the treasury department, is the management of our landed system. The sales have, in some years, amounted to upwards of half a million of dollars, and are generally made upon credit, and yet no bank whatever is made use of to facilitate the collection. After it is made, the amount, in some instances, has been deposited with banks, and, according to the secretary's report, which I have before adverted to, the amount so deposited, was, in January, upwards of three hundred thousand dollars, not one cent of which was in the vaults of the bank of the United States, or in any of its branches, but in the bank of Pennsylvania, its branch at Pittsburgh, the Marietta bank, and the Kentucky bank. Upon the point of responsibility, I cannot subscribe to the opinion of the secretary of the treasury, if it is meant that the ability to pay the amount of any deposits which the government may make, under any exigency, is greater than that of the state banks; that the accountability of a ramified institution, whose affairs are managed by a single head, responsible for all its members, is more simple than that of a number of independent and unconnected establishments, I shall not deny; but, with regard to safety, I am strongly inclined to think it is on the side of the local banks. The corruption or misconduct of the parent, or any of its branches, may bankrupt or destroy the whole system, and the loss of the government in that event, will be of the deposits made with each; whereas, in the failure of one state bank, the loss will be confined to the deposit in the vault of that bank. It is said to have been a part of Burr's plan to seize on the branch bank, at New Orleans.
At that period large sums, imported from La Vera Cruz, are alleged to have been deposited with it, and if the traitor had accomplished the design, the bank of the United States, if not actually bankrupt, might have been constrained to stop payment.
It is urged by the gentleman from Massachusetts (Mr. Lloyd), that as this nation advances in commerce, wealth, and population, new energies will be unfolded, new wants and exigences will arise, VOL. I.
and hence he infers that powers must be implied from the constitution. But, sir, the question is, shall we stretch the instrument to embrace cases not fairly within its scope, or shall we resort to that remedy, by amendment, which the constitution prescribes?
Gentlemen contend, that the construction which they give to the constitution has been acquiesced in by all parties and under all administrations; and they rely particularly on an act which passed in 1804, for extending a branch to New Orleans; and another act of 1807, for punishing those who should forge or utter forged paper of the bank. With regard to the first law, passed, no doubt, upon the recommendation of the treasury department, I would remark, that it was the extension of a branch to a territory over which congress possesses the power of legislation almost uncontrolled, and where, without any constitutional impediment, charters of incorporation may be granted. As to the other act, it was passed no less for the benefit of the community than the bank; to protect the ignorant and unwary from counterfeit paper, purporting to have been emitted by the bank. When gentlemen are claiming the advantage supposed to be deducible from acquiescence, let me inquire, what they would have had those to do, who believed the establishment of a bank an encroachment upon state rights. Were they to have resisted, and how ? By force ? Upon the change of parties in 1800, it must be well recollected, that the greatest calamities were predicted as a consequence of that event. Intentions were ascribed to the new occupants of power, of violating the public faith, and prostrating national credit. Under such circumstances, that they should act with great circumspection was quite natural. They saw in full operation a bank, chartered by a congress who had as much right to judge of their constitutional powers as their successors. Had they revoked the law which gave it existence, the institution would, in all probability, have continued to transact business notwithstanding. The judiciary would have been appealed to, and, from the known opinions and predilections of the judges then composing it, they would have pronounced the act of incorporation, as in the nature of a contract, beyond the repealing power of any succeeding legislature. And, sir, what a scene of confusion would such a state of things have presented; an act of congress, which was law in the statute book, and a nullity on the judicial records! was it not the wisest to wait the natural dissolution of the corporation rather than accelerate that event by a repealing law involving so many delicate considerations?
When gentlemen attempt to carry this measure upon the ground of acquiescence or precedent, do they forget that we are not in Westminster Hall ? ' In courts of justice, the utility of uniform decision exacts of the judge a conformity to the adjudication of his predecessor. In the interpretation and administration of the law, this practice is wise and proper, and without it, everything depending upon the caprice of the judge, we should have no security for our dearest rights. It is far otherwise when applied to the source of legislation. Here no rule exists but the constitution, and to legislate upon the ground, merely, that our predecessors thought themselves authorized, under similar circumstances, to legislate, is to sanctify error and perpetuate usurpation. But if we are to be subjected to the trammels of precedent, I claim, on the other hand, the benefit of the restrictions under which the intelligent judge cautiously receives them. It is an established rule, that to give to a previous adjudication any effect, the mind of the judge who pronounced it must have been awakened to the subject, and it must have been a deliberate opinion formed after full argument. In technical language, it must not have been sub silentio. Now the acts of 1804 and 1807, relied upon as pledges for the rechartering of this company, passed not only without any discussions whatever of the constitutional power of congress to establish a bank, but, I venture to say, without a single member having had his attention drawn to this question. I had the honor of a seat in the senate when the latter law passed, probably voted for it, and I declare, with the utmost sincerity, that I never once thought of that point, and I appeal confidently to every honorable member who was then present, to say if that was not his situation.
This doctrine of precedents, applied to the legislature, appears to me to be fraught with the most mischievous consequences. The great advantage of our system of government over all others, is, that we have a written constitution defining its limits, and prescribing its authorities; and that however for a time faction may convulse the nation, and passion and party prejudice sway its functionaries, the season of reflection will recur, when, calmly retracing their deeds, all aberrations from fundamental principle will be corrected. But once substitute practice for principle; the exposition of the constitution for the text of the constitution, and in vain shall we look for the instrument in the instrument itself! It will be as diffused and intangible as the pretended constitution of England; and must be sought for in the statute book, in the fugitive journals of congress, and in the reports of the secretary of the treasury! What would be our condition, if we were to take the interpretations given to that sacred book, which is, or ought to be, the criterion of our faith, for the book itself? We should find the holy bible buried beneath the interpretations, glosses, and comments of councils, synods, and learned divines, which have produced swarms of intolerant and furious sects, partaking less of the mildness and meekness of their origin, than of a vindictive spirit of hostility towards each other! They ought to afford us a solemn warning to make that constitution, which we have sworn to support, our invariable guide.
ON THE AUGMENTATION OF MILITARY FORCE.
IN THE UNITED STATES HOUSE OF REPRESENTATIVES,
DECEMBER 31, 1811.
[ In our biographical sketch, we have mentioned, that Mr. Clay, having left the senate of the United States in 1811, was the same year elected to the house of representatives, where he took his seat, and was chosen speaker of that body on the opening of the session. This took place at an eventful period in our national history. The numerous and aggravated wrongs which the nation had sustained and endured for years, both from France and England, but more especially from the latter, had aroused the attention of the whole country. The celebrated orders in council, the impress. ment of our seamen, and the right of searching our vessels, claimed and exercised by Great Britain, had prepared the people to expect that some decisive steps would be taken by their representatives in congress. In accordance with public sentiment, president Madison transmitted, November fourth, 1811, a message to congress, recommending appropriate measures for the vindication of our national honor, and the redress of our violated rights. The political parties, however, into which the people were divided, differed widely as to the course to be pursued in our foreign relations. The opposition to the administration numbered many eminent men, among whom the most talented and troublesome was John Randolph, of Virginia ; his intellectual powers at this juncture being in full force and vigor. The committee on foreign relations proposed an immediate increase of the military force, and accordingly a bill passed, to raise thirteen additional regiments for the public service. It was the consideration of this measure, which induced Mr. Clay to address the house, when in committee of the whole, as follows. ]
Mr. Clay (the speaker) said, that when the subject of this bill was before the house in the abstract form of a resolution, proposed by the committee of foreign relations, it was the pleasure of the house to discuss it whilst he was in the chair. He did not complain of this course of proceeding; for he did not at any time wish the house, from considerations personal to him, to depart from that mode of transacting the public business which they thought best. He merely adverted to the circumstance as an apology for the trouble he was about to give the committee. He was at all times disposed to take his share of responsibility, and under this impression, he felt that he owed it to his constituents and to himself, before the committee rose, to submit to their attention a few observations.
He saw with regret a diversity of opinion amongst those who had the happiness generally to act together, in relation to the quantum of force proposed to be raised. For his part, he thought it was too great for peace, and he feared too small for war. He