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John M. Clayton

John M. Clayton was born in Delaware in 1796 and was educated at Yale College and the Litchfield Law School. He was admitted to the bar in 1819. He was elected as a Federalist to the Delaware House of Representatives in 1824, and served as secretary of state of Delaware from 1826 to 1828. Clayton supported John Quincy Adams in the election of 1824 and was elected as a National Republican to the United States Senate in 1828. His first notable speech in the Senate was on the Foot resolution. He supported Jackson against nullification and assisted in the passage of the compromise tariff of 1833. He joined the Whig party and was an opponent of Jackson’s policy on the Bank of the United States. Resigning from the Senate, he was chief justice of Delaware from 1836 to 1838. He was elected to the U.S. Senate in 1845, serving until 1849, when President Zachary Taylor appointed him Secretary of State. In 1852 he was reelected to the Senate and served until his death in 1856.

Speech of Mr. Clayton,
of Delaware

[March 4, 1830]

The resolution of Mr. Foot, of Connecticut, relative to the public lands, being under consideration, Mr. Clayton addressed the Chair as follows:

Mr. President: If I need an apology for discussing topics extrinsic or not strictly relevant to the subject of the resolution before us, I shall find it in the example of honorable gentlemen, who, in going before me, have availed themselves, by general consent, of an opportunity to debate on this motion, the full merits of other questions of momentous interest to our country. While the argument was of a sectional character, and chiefly calculated to excite personal and local feeling, I desired no participation in it. But, although generally averse to any deviation from the ordinary rules of Parliamentary proceeding, and unwilling to originate any new subject of controversy even in the boundless latitude given to this discussion, I cannot be silent while principles are boldly advanced and pressed upon us, (no matter how inapplicable or inappropriate they may appear,) which in my judgment are subversive of the interests of this nation, or hostile to the spirit of the Federal Constitution.

The resolution of the honorable Senator from Connecticut has nothing imperative in its character. It lays down no new principle, and proposes no new course of legislation; but simply asks an inquiry into the expediency of either hastening the sales of the public domain, or of stopping the surveys for a limited period. The committee to whom the inquiry is proposed to be entrusted, is composed of five members,* all of whom are Representatives of States within whose limits are contained large portions of the public lands. Seeing in this fact a sufficient refutation of the objection that this inquiry may create unnecessary alarm in the West—entertaining the same confidence in the honorable members of that Committee which others have professed—believing that the subject proposed to be referred to them is important to the country, and that by the adoption of the resolution we may be furnished with an interesting document in their report, my own vote will be given against the motion for indefinite postponement. I agree with my honorable friend from Massachusetts (Mr. Webster) that the committee may investigate the whole subject without any express instructions. By the rules of the Senate, they already have full jurisdiction over the matter. But after all the discussion which has been elicited by the mere proposition to instruct them to inquire, it is not probable that the committee will do so without some further intimation from the Senate that a report on this subject would be acceptable. I cannot agree with the honorable Senator from New Hampshire, (Mr. Woodbury,) that the motion to postpone is calculated or intended to prevent a distinct expression of opinion on the subject: on the contrary, the postponement of the resolution, after discussion, would announce to the committee our in-disposition to have the inquiry made during the present session. The Senator from Connecticut, (Mr. Foot,) who desires this information, and whose deportment here is distinguished for urbanity and courtesy to others, may be indulged without any apprehension of exciting unnecessary alarm in the West, while our refusal to adopt any measure to throw light on the subject may, possibly, create suspicion in other parts of our country, that we are wasting this portion of the nation’s treasure, and are afraid that our profligacy may be exposed by this investigation.

I proceed now, sir, to a brief examination of what I conceive to have been the origin of this protracted and discursive debate. We have a bill on our files entitled, a bill “to graduate the price of the public lands, to make provision for actual settlers, and to cede the refuse upon equitable terms, and for meritorious objects, to the States in which they lie”—the same, sir, which has been alluded to by the Senator from Missouri (Mr. Benton) under the designation of “my graduation bill.” When the gentleman from South Carolina (Mr. Hayne) first addressed the Senate on the resolution before us, I understood him to have pressed it as a measure of expediency, that the public lands should be sold to the States within whose limits they are situated, for a nominal consideration. The gentleman afterwards corrected this impression when his colleague (Mr. Smith of S. C.) declared that he also so understood him. Sir, the gentleman has the right to claim of us all that his statements should be properly represented. I now understand him to say that his proposition is not to cede away these lands for a nominal consideration, but to sell them on such liberal terms that revenue should not be even a secondary object in the sale. He urged with all his usual ability the impolicy of even considering them as a source of revenue. Sir, if I now comprehend all this doctrine, it has for its objects to make impressions which shall secure a favorable vote on this same graduation bill; and, if so, I dissent from the doctrine toto coelo. Whether this were or were not the great object of the debate, with the gentleman from South Carolina, it was plainly avowed to have been a motive for it by the Senator from Missouri, (Mr. Benton,) in the view which he took of the subject. The bill referred to proposes to limit the prices of these lands at once, to one dollar per acre, and then gradually to reduce those prices at the rate of twenty-five per cent. per annum, until the lands shall be offered, after the expiration of the third year, at twenty-five cents per acre. It further proposes to sell lands to actual settlers, whether trespassers or not, at gradually reduced prices, until, after the expiration of the third year, they are to receive them at five cents per acre. If that miserable pittance be not then paid, it proposes to cede eighty acres to every such settler, “without the payment of any consideration, and as a donation”—and finally, by the terms of it all the lands which shall remain not disposed of by these means at the end of five years, are to be given to the States in which they lie upon these conditions merely—that they shall apply them to the promotion of education and internal improvement at home, and refund to the Government the expenses of the surveys of the lands so ceded, at the rate of two hundred and sixteen dollars for each township of twenty-three thousand acres. In consequence of the enactment of such a law, probably very little would be bought until the expiration of the third year, when, if the interference of these States with a view to secure the whole to themselves for nothing, should not prevent the sales altogether, the lands would be purchased at a nominal price. Such a measure, sir, would not only be unjust to the citizens of the old States, but highly injurious to the Western settlers who have heretofore bought lands at a full and fair consideration. The value of property is merely relative, and is either enhanced or diminished by the estimate placed upon other property of the same kind. If a hundred millions of acres be thrown into market at twenty-five cents per acre, and a large quantity of land be offered to actual settlers at the same time at five cents per acre, the value of that which has been bought by fair purchasers at two dollars, or at one dollar and twenty-five cents per acre, is at once, other circumstances being equal, sunk to a level with the selling price of all the lands around it. We well know the operation upon our real property, in all parts of the Union, of the exposure at public sale of any very considerable portion of real property adjoining it. We know that if a great landed proprietor sells me a tract in the midst of his possessions at fifty dollars per acre, and then, from pecuniary embarrassment or from any other cause, exposes the residue to sale, by which he realizes only five dollars per acre for lands of equal fertility and advantages, my land, as an effect of this, is reduced to his last selling price. When he puts a million of acres around mine into market at a nominal sum, he equally diminishes the selling value of mine by the act, whether his motive for doing so be to augment population, and improve the country, or wantonly to effect my ruin. And should this bill become a law, the former purchasers who have paid full value would, in consequence of the depreciation of the property occasioned by the enactment, have a better equitable right to remuneration for losses by the Government, than many claimants whose demands are annually liquidated here without our hearing a note of remonstrance against them. This bill has been pending here for the last four years; and the disposition evinced to entertain it as a subject for future decision, has cherished expectations which are sedulously encouraged by rumors in the West, that its provisions will eventually be adopted. If my information be correct, and Western gentlemen near me can bear witness that it is so, anticipations have been too generally indulged that these lands will, before long, be offered for nothing. This must tend to impede our sales, and perhaps to some extent to suspend the settlement of our Western frontier—a result I suppose to be deprecated by none more deeply than by the gentleman from Missouri (Mr. Benton) himself. In the meantime, without the final action of Congress on the subject, the illusion is every year increasing; and, to add to the evil, we have now a new doctrine which has been already adverted to in this debate—that these lands of right belong to the new States within which they are situated. The gentleman from Missouri, in reference to the charge of hostility to the West, to prove or disprove which I would not myself now offer a single remark, has chosen to inform us that he has never obtained here more than a single vote for his graduation bill from the representatives of all the States northeast of the Potomac—and he adds, that vote was given in 1828 by a former Senator from the State which I have the honor in part to represent here. For this good deed, the gentleman from Missouri proceeded to pronounce a panegyric on that Senator, which was merited on stronger grounds. Though readily according in the justice which imputes the most correct motives to that gentleman, who is my neighbor, and with whom I live on terms of friendly intercourse, exercising as he doubtless did his conscientious judgment on the case, yet with my views, thus briefly explained, I am constrained to say that I cannot vote for this bill. According to my mode of considering it, it is a proposition to give away the birthright of our people for a nominal sum; and I am yet to learn that the citizens of the Middle States have indicated any feeling in regard to it differing from that expressed in the vote referred to, when, with a single exception, all the Senators representing States north of Mason’s and Dixon’s line, opposed the measure. They do not look to these lands, as has been unjustly stated, with the eye of an un-feeling landholder who parts with his acres as a miser parts with his gold. They view the new States as younger sisters in the same family, upon an equal footing with themselves, and entitled to an equal share of their patrimony; but having children to educate, and numerous wants to be supplied, they will think it ungenerous, unjust, and oppressive, should these younger sisters take away the whole. Sir, it is the inheritance which descended from our forefathers who wrested a part of it from the British crown at the expense of their blood and treasure, and paid for the rest of it by the earnings of their labour. It is not for me to say what are the feelings of the people of the Middle States on this subject. It is their privilege to speak for themselves, and they will doubtless, when they think it necessary, exercise that privilege. But I will say, that if they entertain the sentiments of their fathers, they will never consent to cede away hundreds of millions of acres of land for a nominal consideration, or gratuitously relinquish them to any new State, however loudly she may insist on the measure as due to her rights and her sovereignty, or however boldly she may threaten to defy the Federal Judiciary, and decide the controversy by her own tribunals, in her own favor. Those who are conversant with our revolutionary history, will remember that the exclusive claims of Virginia and of other members of our political family, to the public lands, were warmly resisted by the States of New Jersey, Delaware, and Maryland, as soon as those claims were avowed after the rupture with the mother country. The articles of Confederation were not signed on the part of New Jersey until the 25th of November, 1778, although she had bled freely in the cause of American liberty from the commencement of the struggle. One of the principal objections which caused this delay in the ratification of those articles will be found in the able representation of her Legislature, presented by her Delegates to Congress, before she acceded to the Union. “The ninth article,” said they, “provides that no State shall be deprived of territory for the benefit of the United States. Whether we are to understand that by territory is intended any land, the property of which was heretofore vested in the crown of Great Britain, or that no mention of such land is made in the Confederation, we are constrained to observe that the present war, as we always apprehended, was undertaken for the general de-fence and interest of the confederating Colonies, now the United States. It was ever the confident expectation of this State, that the benefits derived from a successful contest were to be general and proportionate; and that the property of the common enemy, failing in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use. We are therefore greatly disappointed in finding no provision made in the Confederation for empowering the Congress to dispose of such property, but especially the vacant and unpatented lands, commonly called the crown lands, for defraying the expenses of the war, and for such other public and general purposes. The jurisdiction ought, in every instance, to belong to the respective States within the charter or determined limits of which such lands may be seated; but reason and justice must decide, that the property which existed in the crown of Great Britain, previous to the present revolution, ought now to belong to the Congress in trust for the use and benefit of the United States. They have fought and bled for it in proportion to their respective abilities; and therefore the reward ought not to be predilectionally distributed.” And when in November, 1778, the Legislature of New Jersey determined to attach her to the Union, they did it, as they then expressed, “in firm reliance that the candor and justice of the several States would, in due time, remove the subsisting inequality,” yet still insisting on the justice of their objections then “lately stated and sent to the General Congress.” So too Delaware and Maryland, for the same reasons, refused to join the Confederation until a still later period, the former ratifying the articles on the 22d of February, 1779, and the latter on the 1st of March, 1781. The State which I have the honor in part to represent here had, on the 1st of February 1799, adopted the following resolutions to authorize her accession to the Union:

“Resolved, That this State considers it necessary for the peace and safety of the State to be included in the Union; that a moderate extent of limits should be assigned for such of these States as claim to the Mississippi or South Sea; and that the United States, in Congress assembled, should and ought to have power of fixing their Western limits.

“Resolved also, That this State considers herself justly entitled to a right, in common with the members of the Union, to that extensive tract of country which lies to the westward of the frontiers of the United States, the property of which was not vested in or granted to individuals at the commencement of the present war; that the same hath been or may be gained from the King of Great Britain or the native Indians, by the blood and treasure of all, and ought therefore to be a common estate to be granted out on terms beneficial to the United States.”

But after the accession of Delaware with this protest, Maryland still persevered in her refusal to join the Confederation, solely on the ground “that she might thereby be stripped of the common interest and the common benefits derivable from the Western lands.” She still insisted that some security for these lands was necessary for the happiness and tranquillity of the Union, denied the whole claim of Virginia to the territory northwest of the Ohio, and still pressed upon Congress “that policy and justice required, that a country unsettled at the commencement of the war, claimed by the British crown and ceded to it by the treaty of Paris, if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as common property.” In February, 1780, New York made her cession to accelerate the Federal alliance, and declared the territory ceded should be for the use and benefit of such of the United States as should become members of that alliance, “and for no other use or purpose whatever.” And although Virginia attempted for a while to vindicate her claim, yet other States, feeling a strong attachment to Maryland, and conscious of the justice of her representations, disliked a partial union which would throw out of the pale a people standing, as Marylanders have always stood, among the bravest and most patriotic of our countrymen. The ordinance of Congress then followed in October, 1780, declaring that the territory to be ceded by the States should be disposed of for the common benefit of the Union, and on the 2d of January, 1781, Virginia, in that spirit of magnanimity which has generally prevailed in her councils, yielded up her claim for the benefit of the whole Union. It is a remarkable circumstance that Maryland did not actually join the Union until after these cessions had been made by New York and Virginia, declaring at the very moment, and by the very terms of her accession, that she “did not release, nor intend to relinquish, any part of her right and interest, with the other confederating States, to the western territory.” These facts, which have now become a part of the familiar history of the country, furnish curious reminiscences in these latter days, when a new light has broken in upon us to show that the new States have title to all the lands within their chartered limits, and when we are told it would be most magnanimous and becoming in us, who claim to have imbibed the spirit and sentiments of our forefathers, to cede away our patrimony for a nominal consideration. Let it be remembered that the feeling on this subject manifested by the two States of Delaware and Maryland, preventing their accession to the confederation until so late a period, was with difficulty repressed, even by that ardent attachment to the cause of liberty for which they were then so much distinguished, and in which they have never been surpassed. Their troops went through the whole contest together, flanking and supporting each other in battle; commonly led on by the same Commander; generally the first to advance and the last to retreat, their bayonets, like the pikes of the Macedonian phalanx, always glittering in front of one and the same compact mass; and when they fell, they slept in death together on the same part of the blood-stained field. It was that same spirit which prompted the combined exertions of these people in the American cause throughout the whole struggle, which also united them in their resistance against every attempt on the part of any single section of the country to appropriate for its exclusive benefit the territory which they were striving to conquer from the British Crown. Sir, I think they will now combine again; I think they will, when considering this subject, bestow some reflection upon the millions which have been expended in the subsequent purchase of the Southwestern portion of our public domain, on the sums which have been profusely lavished in making and carrying into effect our treaties for the extinguishment of the Indian title, in making the surveys of these lands, and in the payment of officers and agents for the maintenance of our land system. From the feeling which formerly actuated them, I judge that their co-operation on this subject will be such as to resist every effort to bribe them with promises, or to sway them by means of political excitement to give up that which could not be wrested from them by appeals to their strongest attachments in the darkest days of their adversity. They will claim, I think, Sir, an equal portion of this territory under the plain letter of the grants referred to—they may claim a large portion of it by the paramount title of the right of conquest, which has never been by them relinquished; and by that title they can successfully defend it. Whatever foundation there may be for the imputation of motives in other sections of the Union, to flatter and to woo the West by the offer to her of this splendid dowry if she will transfer her influence to a candidate in a Presidential election, we, I believe, shall not take part in any such bargain. The gentleman from Tennessee (Mr. Grundy) says the West has been already wooed and won. It may be so, but we are not, and I think shall never be, sub potestate viri, and if we could be bought for any consideration to sign this release of our birth-right, we should never agree, like Esau, to sell it for a mess of pottage.

I come now, Sir, to consider a subject which has been discussed in connection with this—the right of a State to regulate her conduct by the judgment of her own self-constituted tribunals, upon the validity of an act of Congress in opposition to the solemn decisions of the Supreme Court of the United States: and my remarks upon it will be chiefly in reply to gentlemen who have gone before me. I confess I do not discover why the power of deciding any, and every question, growing out of any circumstances in which a State may conceive her sovereignty impugned, is not translated to her own tribunals by the same train of argument which induces the conclusion that she may nullify an act of the Federal Legislature without the aid of the Federal Judiciary. We know—we are so taught by memorials on our files—that the doctrine is very current in some States of the West, that the public territory within their limits is their own; and we have been threatened that when the population flowing westward has transferred the balance of power beyond the Alleghany, or when, as one in this debate has phrased it, “the sceptre has departed from the old thirteen forever,” we shall find the rights of the new States asserted and maintained, if not by the force of numbers here, at least by the force of arms at home. In that case, too, it is said, that to us distance will be defeat. State sovereignty and State rights constitute the very war cry of a new party in this country. I would myself be among the last to infringe upon the constitutional powers of the States. But how far will the new doctrines on the subject carry us? Some who have engaged in this discussion have avowed the opinion that our claim to the public lands is inconsistent with the paramount rights of Western States, and that upon the fundamental principles of government, the domain within their chartered limits is the property of these new grantees. Others who stand among the boldest champions of the principle that a sovereign State may constitutionally and lawfully enforce her declarations against the validity of an act of Congress, and nullify it whenever by her judgment it is “deliberately, plainly, and palpably unconstitutional,” repudiate the whole doctrine of State supremacy, and State title, when we touch these claims to the public lands. The rule works badly then. The two positions assumed by the same reasoner are repugnant to each other. You cannot claim by virtue of your State sovereignty to nullify an act of Congress, and yet deny to another State the right by a similar operation to tear out of your statute book the leaf containing the Virginia grant, as well as that which bears upon it the act of Congress declaring the uses of that grant. By the grant and the act, the estate ceded is “for the common benefit.” The new sovereigns, within whose dominions the estate is situated, asserting their power to decide all questions which, in their judgment, touch their sovereignty, may nullify both, and make the land theirs; or if they cannot, how can any other of these sovereigns nullify a tariff law or an act for internal improvement, which the Federal Judiciary adjudges to be valid! The gentleman from Tennessee says he will admit that the Supreme Court is the final arbiter in all cases in law and equity arising under the Constitution, and the laws of the United States made in pursuance of it. But I am not satisfied with this limitation. The words of the Constitution are, “the Judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish.” Then this general transfer of power is explained by the second section of the same article: “The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens or subjects.” All these words of the deed are in full force, except so far as it has been altered by the single amendatory article to prevent suits against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. The instrument then contains no qualification of the judicial power restricting its exercise to cases arising out of laws made in pursuance of the constitution.

The reservation is an inadvertent interpolation in the instrument, and the power granted extends to laws of the United States, whether constitutionally or unconstitutionally enacted. It will be seen, too, that the United States must “be a party to controversies” concerning a tariff law, as well as to those which affect the right to the public domain, or any other question touching State sovereignty; and that if there be no authority in the instrument by which the judicial power can be extended to the former class of controversies, there is none to extend it to the latter class, or any case which a single State may consider as presenting an infraction of her own powers. The gentleman from Kentucky (Mr. Rowan) and other Senators have contended that a State cannot surrender any portion of her sovereignty, and we have been asked to produce an instance in which sovereignty has submitted itself to any judicial tribunal. Those who formed the constitution, in their recommendatory letter signed by Washington on the 17th of September, 1787, inform us that “it is obviously impracticable in the federal government of these States to secure all the rights of independent sovereignty to each, and yet provide for the interest and safety of all.” The gentleman from Tennessee, in order to explain and construe the constitution, referred to the brief enumeration, contained in this letter, of the specific objects which made it necessary to establish this government. I refer to the same authority to overthrow the doctrine which regards all the rights of independent sovereignty in each of the States, and to prove that some of those rights were, in the view of the convention, ceded to provide for the general welfare. States are not self-existent: they are created by the people for their benefit. Those who have conferred state power, can take it away; and for their own good they have transferred a portion of this mysterious principle of sovereignty, which troubles gentlemen so much, to another place. They have transferred a portion of the Judicial power to the Supreme Court, which acts as an impartial umpire, and not as an adversary party deciding his own cause, as is erroneously supposed by some reasoners here. The gentleman from Tennessee says the Federal Judiciary is, when a question of State rights is before it, a portion or part of one of the parties, created by the Legislative and Executive branches of the general government, responsible to that government alone, and liable to the imposition of destructive burdens by that party. Even if all this were correct, it would be a sufficient answer to it, when discussing this question, to reply that the States had agreed that the arbiter should be thus created and thus responsible, having signed the arbitration bond deliberately and with a full knowledge of the consequences. But when we look into the instrument we find that the States, by their representatives in the Senate, must first consent to the appointment of the arbiter, or he is not lawfully chosen. They can challenge for cause, and they can challenge peremptorily. By refusing to consent to appointments, they might in time vacate every seat on the whole tribunal. By the Legislative power of their immediate representatives in the Senate, responsible to the States as their only masters, they can always prevent the imposition of oppressive burdens on their common arbiters. They alone can try these arbiters on impeachment for misbehaviour, and without impeachment those arbiters cannot be removed from office. The Senator from Kentucky objects to the Federal Judiciary, that a majority in Congress may by law increase the number of judges, and thus oppress the minority when they please. It has been said, too, that large States, with a great representation in Congress, such as New York and Pennsylvania, combining with others, may by their superior vote so far increase the number on the bench as to oppress and destroy the sovereignty of the lesser States. If the objection has any weight, it is one which could be made to our whole system of republican government. We are ruled by majorities; and if the majority of this nation should become radically corrupt, I admit that the government will soon fall. But I have sufficient reliance on the virtue and good sense of the people, whether living in large or small States, to believe that no attempt will ever be deliberately made by a majority in either, to destroy the independence and legitimate powers of the other. And I feel no apprehensions on this subject, for other reasons. Let us inquire into the mode of operating. Supposing now (to make out the gentleman’s case) that the large States wickedly conspire to ruin the small ones. New York, Kentucky, Ohio, Pennsylvania, Virginia and North Carolina, being (as would be so probable!) united for this end, carry a bill through the other House to double the number of judges. Suppose, too, that they had by their votes elected a President who would second their views. When the bill comes before the Senate, if the small States understand your object, they, having an equal representation here, secured by the only provision in the constitution which numbers can never change, vote you down at once; and your combination (as other combinations may be) is consigned to

——“that same ancient vault,
Where all the kindred of the Capulets lie.”

But suppose the Senators representing the small States here, not suspecting mischief, but relying on your integrity, suffer the bill to pass. Your President being in the plot, as we will for the sake of argument suppose, it becomes a law. What then? The bench is not yet filled. The “modus operandi” requires that he should nominate, and we should consent to the appointment of the men who are to adjudge away our independence. We might be slow to suspect our old friends of dishonest purposes, but we can learn some things if you give us time. When you bring out your nominations, we cannot fail to understand your plan. You are caught at once, flagrante delicto, and we check you in the Senate, by rejecting all nominations which do not please us. We have two chances to put an effectual veto on your plot, and our veto is a very different affair from your State veto on an act of Congress. However thankful, therefore, we may be for the kindly apprehensions expressed for our welfare, we say that we are not yet alarmed. We cannot see, with the honorable gentleman from Tennessee, that the States have been guilty of either folly or weakness in creating such a tribunal as we conceive the Supreme Court of the United States to be—nor do we think with him, that by the easiest operations imaginable this creature is so competent to the destruction of its creators.

But whatever may have been, in the opinion of honorable gentlemen, the folly of the people of these States in creating such a tribunal, or however incompetent it may appear to decide these matters, the question still recurs—Is there any other forum established with co-extensive, or with appellate powers? If so, what is it? There ought not to be a wrong without a remedy, and the interest and safety of all require the existence of some arbiter to grant a remedy. We are warned, however, that if by the Constitution there be not some express grant of power for this purpose, the States and the people still reserve it. On the other hand, if the grant to the Federal Judiciary be express, the States have not reserved it, and can create no other without forming a new Constitution or violating this. Sir, I listened with deep interest to the developement of what I thought was announced as a new discovery on this subject. I will consider that adverted to, and recommended, by the gentleman from Tennessee, (Mr. Grundy.) After conceding to the Federal Judiciary the powers of a common umpire, to decide on the constitutionality of all Congressional enactments made in pursuance of the Constitution, he informed us that there was another tribunal to which a State might resort when oppressed by what she considered to be a plain, palpable, and dangerous violation of the Constitution, without throwing herself out of the Union. He admitted that the Legislature of the State was not this tribunal. That might be misled. He beats the ground then which was occupied by the gentleman from South Carolina, (Mr. Hayne,) but himself takes a new position, not less dangerous. For he informed us that a State Convention might be called, and that might nullify the oppressive law—after which, he thought Congress must acquiesce by abandoning the power. The amount of this is, that one State is to govern all the rest whenever she may choose to declare, by Convention, that a law is unconstitutional. The end of this, we say, is war—civil war. We admit that a State Convention may pronounce any law unconstitutional, as Virginia did in ’98. But the mere declaration comes to nothing, unless it can be enforced. You may declare a law unconstitutional, and so can I. But what of that? It amounts only to this—we have full freedom of speech in this country, may advocate what opinions we please, and peaceably endeavor to impress them upon others. But the gentleman says this doctrine does not lead to war. If Congress will not submit to the State, he thinks there is still a complete political salvo in another tribunal, and that is a Convention of the States to be called under the provisions of the Constitution. The State then must exert herself until Congress, two thirds deeming it necessary under the fifth article, shall propose amendments to the Constitution; or, on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments, which, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths of them, shall be valid to all intents and purposes as part of the Constitution. So far this does not contravene the doctrine which we advocate, and which the Senator from New Hampshire, if I rightly understood him, after much preface, and with some “slips of prolixity,” finally settled down upon as a part of the true orthodox creed. The right to amend the Constitution has never been denied. This was a part of the political platform upon which my honorable friend from Missouri, (Mr. Barton,) invited you to come and stand with us. If the Convention of the States should assemble and decide by a majority of three fourths against the State, the gentleman from Tennessee says the State must submit. But if they decide otherwise, or do not decide at all, Congress must submit to the State. Without assenting to this last conclusion, which appears to be arbitrarily assumed, I will only inquire, if this be so, how is this tribunal to save us from civil war? The answer is, only by so amending the Constitution as to warp it to suit the declarations of the State Convention. This is an excellent remedy for the complaint of the State, but rather difficult to procure. If this is the sovereign panacea which the honorable Senator from Tennessee has discovered for healing the diseases of the South—Sir, I fancy she will agree with me in commending her physician for his ingenuity in finding out the ingredients of the bolus, but she will still think they are too hard to be obtained to render the prescription valuable to her. With less experience, I would recommend to a State groaning under the operation of a law which she deems unconstitutional, to apply first to the Federal Judiciary, where she will generally obtain relief, if her complaint be not hypochondria or imaginary ill. If she fail there, let her pour her complaints into the ears of her sisters, and use all constitutional means to procure a repeal of the obnoxious law. A bare majority of Congress will be sufficient to give her relief in this way. Do you object that Congress will probably persevere in their course, and refuse to repeal the law they have enacted? It may be so—and if so, their constituents, being a majority of the people, must concur with them, that the law is not only constitutional but salutary, or they would, by the exercise of the elective franchise, remove such unworthy agents of their sovereign will. If they do concur with their representatives, and uphold them in their refusal to repeal the law, no matter how often by any other power than the Federal Judiciary declared to be unconstitutional, in my humble judgment you will hardly persuade three-fourths of them to assemble for the purpose of altering their Constitution, and depriving their own agents of the power of acting on the subject.

It comes at last then to this—that we have no other direct resource, in the cases we have been considering, to save us from the horrors of anarchy, than the Supreme Court of the United States. That tribunal has decided a hundred such cases, and many under the most menacing circumstances. Several States have occasionally made great opposition to it. Indeed it would seem that in their turn most of the Sisters of this great family have fretted for a time, sometimes threatening to break the connection and form others—but in the end nearly all have been restored, by the dignified and impartial conduct of our common umpire, to perfect good humour. Should that umpire ever lose its high character for justice and impartiality, we have a corrective in the form of our government; but if it is to be had only by a calm and temperate appeal to the judgment and feelings of the whole American people, it can never be obtained by such addresses and resolutions as those of Colleton or Abbeville. Reason receives not in place of argument violent denunciations or furious appeals to party and passion. During a period of four or five years past, the complaints of the South have for this reason met with a cold reception in almost every other section of the Union. They have been loud and deep—but they have been evidently regarded as the transient effusions of party feeling, coming, as they too often did, couched in language of bitter vituperation, with the now stale and despicable charges of “coalition, bargain and corruption,” that vile and putrescent stuff which has at length, as the Senator from Massachusetts truly stated, sloughed off and gone down into the kennel forever. The course pursued was exactly that which was best calculated to make the whole alleged grievances, if real, irremediable. Those who loved and admired the character of the Statesman of the West, indignant at the calumnies with which he, as they saw, was so unjustly assailed, often regarded the complaints which came with them as mere secondary considerations, brought in to aid a personal attack. On the other hand, many of those who affected to accredit these calumnies for political effect, in their hearts never sincerely believed any part of the story of southern sufferings, thinking perhaps that they knew best what weight was to be attached to the political falsehoods which commonly accompanied them. However different their objects, they were really on the same chase, but to the southern huntsman the game taken has been of no benefit. From a recent demonstration, we perceive the Southern complaint is now not even deemed worthy of a hearing. Sir, when I witnessed the manly and candid manner in which the Honorable Senator from South Carolina on my right (Mr. Smith) spoke of the grievances of his constituents, when I saw him evidently soaring above mere party feeling, menacing none, denouncing none, and touching with all the delicacy which characterizes him the subjects in difference between us, the reflection forced itself irresistibly on my mind—how different might have been the reception of these complaints, had they always come thus recommended. South Carolina, though erring in a controversy with her sisters, would by all have been believed to have been honestly wrong; and if under such circumstances she should ever throw herself out of the pale of the Union in consequence of such a misconception of the constitution as we have endeavoured to prevent, I would rather see my own constituents stripped of the property acquired under the protection furnished by the government to their honest industry, than compelled by any vote of mine here to drive the steel with which we should arm our citizens into the bosoms of that gallant people. And I will now say, without meaning to express any further opinion on this delicate subject, that, for myself, whenever pounds, shillings and pence alone shall be arrayed against the infinite blessings of the Union, I shall unhesitatingly prefer the latter—for the simple reason, that I can never learn how to “calculate its value.”

The honorable member from New Hampshire, in the progress of his very ingenious remarks, discussed, in connection with the constitutional power of the Judiciary, the whole doctrine of internal improvement, as well as the tariff. He denounced both as aggressions of the Federal government on the rights of the States, as measures evincive of and flowing from a disposition on the part of some, to claim for that government unlimited powers; and endeavoured to make it appear that these acts for internal improvement were and ever had been Federal heresies, while the opposite and restrictive tenets, limiting us to the strict exercise of certain enumerated and specific powers, had always distinguished your genuine democrat and only true republican. The honorable member informed us that by the prevalence of his strict construction of the constitution over the latitudinarian doctrines, the great political revolution of 1800 was effected, and that his mode of construction had ever since remained “the watch-word of democracy” and the strongest “test of political orthodoxy.” He showed us by these means how “the matchless spirit of the West,” the great advocate of the principles so denounced, had always been a federalist, while on the other hand he barely intimated that a matchless spirit in the South had perhaps been misrepresented on the same subject. The intimation, that the views of one statesman had been misunderstood, was accompanied by the admission that there might be differences, and possibly honest differences, on the same subject, in the same party. This was all well—and my only reason for adverting to it, is to express my regret that so charitable a salvo was not extended beyond the party line. But we were afterwards told by the honourable member, that the resemblance between the political character of the opposition and administration parties, in 1798, 1812, and 1828, confers upon him, and his political friends, “a title to old fashioned democracy, as the same democratic States, with one or two exceptions only, are found, (he says,) at each era, side by side, in favour of Jefferson, Madison, and the hero of Orleans. On one side Virginia, and Pennsylvania, Carolina and Georgia, Tennessee and Kentucky. On the other Delaware and Massachussetts, Connecticut, and divided Maryland.” I shall hereafter take leave to present to the view of the honourable member some coincidences much more striking than that which here appears to have caught his fancy. Keeping in view now the position assumed by him, in regard to the federalism of the Western statesman, and other advocates of internal improvement, I would enquire into the title to “old fashioned democracy” of Georgia, Carolina, and other Southern States, here designated by him, on the 14th of March 1818, when twenty one of their representatives in the other House carried the resolution which fully established this “federal” heresy—declaring “that Congress has power, under the constitution, to appropriate money for the construction of post roads, military and other roads, and for the improvement of water-courses.” Four of the seven representatives from South Carolina, Mr. Lowndes, Mr. Simkins, Mr. Middleton, and Mr. Erwin, voted for this resolution, the two first named gentlemen advocating, in the debate to which it gave rise, the power of Congress to construct Roads and Canals. When the resolution was adopted, Mr. Lowndes declared that the decision then made had settled the whole question. Two thirds of the Georgia delegation, Mr. Abbott, Mr. J. Crawford, Mr. Terrill, and Mr. Forsyth now an honourable Senator from that State, supported the same resolution. Did Carolina and Georgia then forfeit their “title to old fashioned democracy?” Shall we not try them too, as well as Delaware and Massachusetts, by the “strongest test of political orthodoxy.” If Delaware is here to be put on trial, she will stand his test admirably. Though generally Federal until 1826, when the new parties were formed, she was almost uniformly represented in this Senate, up to that period, by Federal gentlemen holding on this subject the very tenets of the honourable member himself, always confining the powers of the government to the specific and enumerated objects; and opposed alike to these acts for internal improvement and tariff laws. In 1827 and 1828, she was represented here by two able Statesmen of the opposite and latitudinarian creed, both of whom had been federalists; but at that time, Sir, they were dyed in the wool by the Jackson process, and, of course, were genuine republicans, as the honourable member will admit. They neither changed or concealed their opinions. Were they not “orthodox?” One of them, standing conspicuous for his talents in the ranks of the orthodox party, now, by their appointment, represents us at the proudest court in Europe. It cannot be necessary to follow out the inquiry further, to try the truth of his test by a reference to musty records and by gone events. If the honourable member will pursue it, he will soon find himself, by the aid of such a test, involved in the mazes of a labyrinth, from which he could not escape in safety, even with the thread of an Ariadne to guide him. Sir, the whole of this part of the gentleman’s ingenious argument is admirably calculated, ad captandum, as it makes all our Canals, Rail Roads, and Turnpikes, which have been made by the assistance of Congress, the works of that anathematized “peace party in war,” which, as we have been told here, has been thus struggling, since the earliest period of our history, to confer upon our rulers absolute power; and I will now dismiss it, that it may perform the duties of its mission, with this single remark, that you may perceive, peeping through its foregone conclusions, how the bent of the gentleman’s mind, in condemning Southern votes, is evidently at this time inclining with a breeze to the North North-East—though I still suppose that, “when the wind is southerly, he will know a hawk from a hand-saw.”

So far as the State which I have the honor in part to represent here, can furnish evidence to illustrate the title of the honorable member, and his political associates, to “old fashioned democracy,” by the fact that a party odious to them has always prevailed there, he is welcome to the evidence for his own uses. It will never redound to her discredit. It can never be a cause of exultation to any man who knows the history of his own country, and values his own reputation, to find her always arrayed against him. And as the honorable member has called my attention to the subject, I will remind him what kind of a “peace party in war” we have always had in Delaware. We have ever had such a party there as “bewares of entrance to a quarrel,” but, being once engaged in it, puts forth all its energies of body and soul in the controversy, and for the love of peace fairly fights out of it. We had a party of this kind at the bloody era of the American revolution, contending against the usurpations of the British Crown—a party which supplied more warriors in the cause of American liberty, in proportion to our limited means and population, than were furnished by any other State in the whole confederation. The bones of many of that old party were buried on Long Island, and at White Plains, at Princeton, at Brandywine, at Germantown, at Camden, at Guilford, at Eutaw, and at Yorktown; and your pension rolls now show but fourteen of them alive and dependent on your bounty. Many of that party were at Fort Mifflin too; and the gentleman from Maryland, (General Smith,) the father of the American Senate, (himself one of the most distinguished patriots of the revolution,) who commanded there, when referring in debate a few days since to the conduct of one of them, (Captain Hazzard,) bore testimony to that kind of peace-loving disposition in war which we cherish, when, almost overpowered by the emotion caused by a recurrence to the sad history of the sufferings of his gallant comrades, he described our old peace party troops as soldiers than whom better or braver had never existed. I am told that we had Federalists who opposed the declaration of the last war; but those very Federalists, like their brethren of the opposite party, supported the cause of their country through the whole war with unbending firmness and devoted patriotism. We have national republicans, I am now told; but as they are made up of the same kind of materials which composed the peace parties I have been describing, I shall be pardoned if I defer to other judgment than that of the gentleman from New Hampshire, and say that I am proud to represent them here, even though, by so doing, I am placed in opposition to an administration which claims to be exclusively democratic, and yet appoints more Federalists to office than all its predecessors have done since the revolution of 1801—always, nevertheless, keeping steadily in view this indispensable qualification, that every Federalist so appointed must be of the Jackson stamp. I shall ever feel attachment for that party which seeks in peace to prepare for war, by extending the beneficent action of this government to increase the means of our defence, makes roads and canals to transport our munitions in time of need, fortifies our coast, improves our harbours, protects our commerce, and has already built up a navy which is the glory of our country and the admiration of the world.

Sir, I must be pardoned for dwelling at length in reply to other remarks of the honorable member from New Hampshire, whose opinions and reasoning are regarded, by some of his political friends here, as laying down the law and fixing the standard of political orthodoxy. When he had closed his remarks, the Senator from Missouri near him (Mr. Benton) arose in his place, and pronounced the honorable gentleman to be his Peter, the rock on which he would build the great democratic Church.

[Mr. Benton having risen to explain, Mr. Clayton gave way for the purpose.

Mr. Benton.—I did not say “this is my Peter. I said—yes, this is Peter, and this Peter is the rock on which the Church of New England democracy shall be built. This is what I said aloud, and what the Senate heard. What I said in a lower tone, and not intended for the Senate, was this, “and the gates of hell shall not prevail against him.”]

Mr. Clayton resumed. Sir, I accept his modification, and wish to present fairly, not only all the words, whether spoken on a high or a low key, but the action which was so admirably adapted to them. The gentleman from Missouri then, in the face of the Senate, extended his right arm over the head of the gentleman from New Hampshire, with all the majesty of a Cardinal, or a full robed Bishop, about to pronounce a benediction on a new monarch, or to install a new incumbent of the papal see, and, as he now says, did not merely declare him to be his Peter, but announced him to the world as the great Pontiff of New England democracy; and, of course, I suppose, (as that, by his former admissions, is as good as any,) of all other democracy under the whole Heavens. Sir, I had the right to suppose that he who thus inducted him to office had full powers, or he would not have performed the ceremony. Give me leave to say, that when I heard the new Pontiff lay down his law in conformity with my old-fashioned notions of the powers of the Judiciary, abjuring, as a political heresy, all the new “Carolina doctrine,” though seemingly endorsed by the Senator from Missouri himself, I thought that I should stand at least one of the new “tests of political orthodoxy,” and I sincerely hoped that, on this subject, nothing might prevail against him. When he issued this, his first bull, I felt disposed to register all his rescripts, and I certainly have preached the very doctrine which it inculcated. But when I heard the American System denounced as a mere federal measure; when I heard, too, from the same source, that a good officer ought to be removed before the regular expiration of his term, for party motives, or personal aggrandizement, and the whole proscriptive system of the new administration thus justified and extolled,—then, Sir, I confess (meaning nothing irreverent by my allusions) that I became a dissenter and a protestant, and although I expect indulgence for such transgressions, I strongly suspect that I shall carry my abominable heresies to the grave.

The Senator from Missouri, (Mr. Barton,) having, in the range of this debate, invited the concurrence of others in certain fundamental principles and important objects, enumerated among the number the preservation of the freedom and purity of elections, unawed by official punishments, and uncorrupted by official rewards, in opposition to removals from office for the exercise of the great elective franchise, or to make room for the reward of partisans in our Presidential Elections, by the bestowal of public employments. He submitted that the power of removal from office by the President was a high legal trust, to be exercised for the public benefit, in sound discretion, for cause relating to the official conduct or fitness of the incumbent; that the Senate of the United States had restraining powers in the matter of displacing, as well as of appointing Federal officers; and that, by the Constitution, the Executive power could never be arbitrarily exercised. He advocated “the freedom of inquiry into the exercise of Executive discretion and official trust, in opposition to Executive irresponsibility and unsearchableness, and to the suppression of free inquiry into our political affairs.” The Senator from Maine (Mr. Holmes) merely adverted to the general proscription in New England. In reply to these gentlemen, the Senator from New Hampshire says he will not accept the invitation of the Senator from Missouri, (Mr. Barton,) to stand on his new political platform, composed, as he considers it, of articles of opposition to the present administration—defends the whole course of that administration as “democratic and constitutional,” and informs us that, in the principle of removal from office, for even political motives, their policy only follows up the doctrines of the great revolution in 1800. He speaks of these removals as mere rotation in office, first made by the people themselves in the highest office in the land, the Chief Executive of the Union, for political cause, then inquires, triumphantly, if the same cause should not affect the active deputies and subordinates, as well as the principal. “Whatever disappointments and suffering by removal, (says he,) some individuals may sustain; yet they knew the legal tenure of their offices.” He, therefore, thinks the agents of the people cannot fear the cry of cruelty or persecution, because the power of removal, as now exercised, only “changes one good man,” (that is, for political opinions,) “for another good man,” and, therefore, does no injury to the public. He then proceeds to say these agents need not dread the discussion of the constitutionality of their exercise of this power, thus plainly avowed by him to have been levelled at the right of opinion. Sir, the honorable Senator from Tennessee, (Mr. Grundy,) if I rightly understood him, avowed the same opinions; for he denied the right of the Senate to inquire into the causes of removal, and insisted that the present administration had not gone beyond his principles on this subject. He contended that the Senate would transcend their constitutional power, and thus violate the instrument which it is their interest to preserve, by examining into and judging of the propriety of removals from office, or by controlling the Executive in the discharge of this branch of his authority. He entered into a full discussion of the rights of the President with great ingenuity, and manfully challenged us “to come out boldly, and discuss this subject with his friends freely and frankly.” The honorable gentleman is a formidable antagonist. He wields a long knife with a strong arm, in defence of his friends; but when he throws down his gauntlet to what is here called the opposition, and defies them to a contest with these principles of this Administration, he will be met freely, frankly, and boldly too.

Mr. President: Another year has rolled away. Our ides of March are come. This day, which is the anniversary of the Chief Magistrate’s Inauguration, brings with it some strange reminiscences of the past, and some still stranger anticipations of the future. On the last 4th of March, and at about this very hour of the day, the American Senate followed the American President in the progress of his stately triumph to that scene where, in the presence of assembled thousands of his countrymen, he proclaimed to the world the principles upon which he intended to administer the government. Independently of the fact, that the whole subject has been thrust into this debate, as I have stated, there seems to be some propriety in devoting a portion of the passing hour to the consideration of the extent and influence of executive authority. These on this day would be proper subjects of reflection for the Chief Magistrate himself; and as we are his constitutional advisers, exercising, in one sense, a portion of the executive power, we may learn our own duty better by the temperate examination of his. I concur with the gentleman that in discussing this, or any other subject, involving a question of constitutional law, passion and feeling are to be regarded as poor auxiliaries. We should go for nobler game than mere party interests. Principles are to be first settled here; but then the application of them must be fearlessly made. The first inquiry ought to be, what are the true principles;—not what is the interest of any party. It will be found that my view of those principles differs, as much, in some respects, from those of some to whose judgment I usually defer, as it does, in others, from those of some who profess to be politically arrayed against me.

The power of removal is no where expressly conferred by the Constitution, except in the section which provides that all civil officers of the United States shall be removed from office on impeachment for, or on conviction of, treason, bribery, or other high crimes and misdemeanors. A Judge, the tenure of whose office is dum bene se gesserit, is removeable only by this means. But where good behaviour is not the tenure of office, the power of removal is properly and generally incident to, and a consequence of, the power of appointment. The power to destroy is ordinarily implied from the power to create. It is a common axiom of our jurisprudence, that the authority to dissolve a thing must be as high as that which formed it. The Legislature which has the express power to pass a law for raising revenue, for example, has the necessary power to repeal it. The Governors of many of the States enjoy, by express provisions in their respective constitutions, the power of appointment to office, and yet exercise by construction, and by implication only, the power of removal from it, their State Constitutions being silent on that subject. The Post Master General, who, harmonizing with this administration, has removed, within the last year, his thousand deputies, agents, and clerks, though vested by law with the express right of appointing them, can point you to no statute conferring upon him the right to remove one of them. The numerous clerks and agents appointed under express legal provisions, by other Heads of Departments here, are removeable only by the same construction. The law has conferred upon the Supreme Court the power of appointing its Clerk, and, although considered removeable by it, yet no law has thus limited the tenure of his office in express terms. But then this authority, thus derived from implication and construction, if kept within the spirit of the Constitution and the laws, instead of being used arbitrarily or tyrannically, can be exercised only for the public welfare.

In two classes of cases the power of appointment is exercised by the President alone:—first, where Congress have, by law, vested in him the appointment of such inferior officers as they thought proper; and, secondly, where he is empowered to make appointments by virtue of the last clause in the second section of the second article. There are some peculiar considerations growing out of the manner in which the power of removal in the first of these classes has been exercised, which it is unnecessary to enter into now, as they are not immediately connected with the executive rights of the Senate. Appointments of the second class are temporary only by the express provisions of the clause which authorizes them. “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” With these exceptions, the second section referred to expressly confers the power of appointment upon the President and Senate, by the words “he shall nominate, and, by and with the advice and consent of the Senate, shall appoint.”

Although the Constitution has thus recognised the Senate as an essential component part of the appointing authority, yet the power of removal has been uniformly exercised by the President alone since the Constitution was established. This then has been a deviation from the general principle, that the right to remove can be exercised only where the right to appoint exists. But I do not concur with the honorable gentlemen who have viewed this power as unlimited by the spirit of the Constitution, and having arrived at the conclusion that sic volo is the legal tenure of office, would leave it to become the sport of a spirit not less arbitrary and tyrannical than that of absolute despotism. Every administration preceding this has professed to exercise this power within certain established constitutional limitations, regarding removals as expedients to be resorted to by the President only for the purpose of securing a faithful execution of the laws, or when really necessary for the general welfare. And if a single instance can be shown in which any President before this has ever prostituted this authority to party uses, or for personal aggrandizement, it will be found that he has, at least in terms, assumed the virtue of administering the government on different principles, and denied that he intended to invade the right of opinion, or pervert his power from its legitimate object. The history as well of the precedent upon which the Senator from Tennessee so much relies, as of others to which he has not adverted, shows that this constructive power would have never been acknowledged if it had not been supposed to have been strictly limited and distinctly defined.

When the bill “for establishing an Executive Department, to be called the Department of Foreign Affairs,” was under the consideration of the House of Representatives, during the first session of Congress after the adoption of the Constitution, the debate to which the gentleman from Tennessee has referred, arose upon one of its provisions granting to the President the right of removing the Secretary to whom our foreign relations were to be principally entrusted. That provision was then so modified as not to carry with it the appearance of a grant of something not before given, but to recognise a constitutional power of removal already subsisting in the President. The power was strongly denied by Mr. Gerry and Mr. Roger Sherman, and maintained by Mr. Madison and Mr. Baldwin. These gentlemen had all been members of the Convention that made the Constitution, and yet were thus equally divided in opinion on the construction of the very instrument which they had, so recently before that, assisted in forming. The point then was regarded as extremely doubtful. There were others, who had not been members of the Convention, who engaged on different sides with equal zeal in the contest, until at length a construction implying the existence of the power was established, so far as a tribunal which had no jurisdiction over the subject could do it, by a vote of thirty four to twenty. It has often been observed, and I apprehend it is unquestionably true, that the character of Washington, then President of the United States, had great influence in producing this decision. Add to this, too, that the question arose in the very strongest case which could have been presented for the advocates of the Executive—the case of a Secretary, between whom and the President it was absolutely necessary that the most confidential relations should subsist. These supporters of Executive authority were then, as men will ever be, influenced in some degree by the circumstances immediately around them. The statesmen of the day literally vied with each other in expressions of their high confidence in the man who then filled the Chair of State, beloved by all, and distrusted by none; and it is but too evident from the arguments advanced on this occasion, that they were beguiled by the imagination that none but beings of such exalted virtue and spotless purity would ever be elected to succeed him. They reasoned from an illusion to which human nature is at all times liable. Under such circumstances, a principle was decided, which forms a distinct exception to an established general rule; and it cannot escape observation that under other auspices a very different result would probably have been produced by the deliberations of 1789. The discussion to sustain this power mainly rested on these brief positions—that the Constitution had conferred upon the President the Executive power—that the general concession of Executive authority embraced removals, as well as appointments—that the power granted to the Senate, being an exception to this general provision, ought therefore to be construed strictly, and could not be extended beyond the express right (with its necessary incidents) of negativing appointments—and, above all, that the President, being bound to “take care that the laws be faithfully executed,” must therefore remove whenever the public interest imperiously requires it. The last position, aided by all the extraneous considerations referred to, was successful. Every reasoner dwelt upon it as the keystone of the argument. It was not then contended by the fathers of the republic, that the general grant of Executive power was to be construed alone by the strict specifications of it, subsequently entered in the same instrument. True, our modern reasoners revolt at the thought of extending the powers of Congress beyond the specific enumeration of them, by a general grant of “all legislative power;” and although the honourable gentleman from New Hampshire has informed us that the friends of this administration, claiming the authority to remove in its utmost latitude, need not dread the discussion of their right to do so, yet he has, in this very debate, stoutly denied a construction, to the general delegation of power to Congress in the Constitution “to provide for the general welfare,” similar to the one placed in 1789 upon the general delegation of Executive power “to take care that the laws shall be faithfully executed.” Without this latitudinarian interpretation, the power of removal would have remained forever, on the general principle, in the President and Senate. But it was not urged in 1789, by any man, that this constructive power was unlimited and absolute; on the contrary, gauging it by the strict standard of the rule which defined while it conferred it, they declared that it was given to the President only for the purpose of “securing a faithful execution of the laws,” as an incident to his great prerogative to preside over his country for his country’s good. They pointed out the very cases for its proper exercise: They said it was necessary to remove a traitor from office, “to secure a faithful execution of the laws:” They urged that an officer who should become insane, corrupt, disabled, or in any manner or by any means unfaithful or disqualified to serve the public to the public advantage, ought to be, and was of right removable, in order “to secure a faithful execution of the laws;” and having thus measured and marked down the length, the breadth, and the depth of the whole principle recognised by them, they doubtless little expected that any opinion given, or precedent set by them, would ever be adduced to sanction the exercise of uncontrolled and despotic power. The honourable gentleman from Tennessee, who has filled the office of a Judge with great credit to himself, says that he loves precedents; and having informed us that “Mr. Madison understood the Constitution and structure of the government as well as any man that ever lived,” holds up the Congressional Register of that day, points to the opinion of that able statesman there given, and triumphantly announces that there we may see his doctrines, and there his constitutional lawyer. Sir, we may venture here, I think, to meet the gentleman on his own grounds. I say, too, that, like others from the schools of forensic disputation, I love precedents; and that Mr. Madison on this subject is also my constitutional lawyer. But then, when I like the opinion of a constitutional lawyer so well, I take the whole, and not merely a part of it. I do not gratuitously reject one half of it, while I rely so much upon the other. I read from the same volume Mr. Madison’s words, uttered on that same occasion, that “the dismission of a meritorious officer was an abuse of power above his conception, and would merit impeachment.” Again, he qualifies the power he advocates, and explains it thus: “The danger, then, consists in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints to operate to prevent it? In the first place, he will be impeachable by this House, before the Senate, for such an act of mal-administration; for I contend, that the wanton removal of meritorious officers would subject him to impeachment, and removal from his own high trust.” Our constitutional lawyer then thinks your President ought to be removed from office, if he has acted on the principles avowed by his friends here, and says—the kind of power you contend for is above his conception. This does not seem to work well; and perhaps you may now think our constitutional lawyer, “who understood the constitution and structure of the government as well as any man that ever lived,” in an error. Then let us look into the opinions of others, expressed on the same occasion, who were aiding in the establishment of this precedent, admired so much. Mr. Lawrence, though an advocate of the same power, denied that, according to his understanding of it, it was ever to be exercised “in a wanton manner, or from capricious motives;” and, with a view to silence the apprehensions of those who were alarmed lest it might be exercised without restraint, he puts to them the question which had been answered by Mr. Madison—“would he (the President) not be liable to impeachment for displacing a worthy and able man, who enjoyed the confidence of the people?” Mr. Vining, on the same side, remarked “that if the President should remove a valuable officer, it would be an act of tyranny which the good sense of the nation would never forget.” Such were the views of all the prominent advocates of this right at that time. Do I go an inch, then, beyond your own authority when I infer, from the opinions of the very men upon whose judgment you now build, that the system of removing meritorious officers before the regular expiration of their terms of service, for either personal or party motives, is hostile to the spirit of the constitution, an “impeachable mal-administration” of the government, and a “tyrannical” encroachment on the liberties of the people?

But when we trace the history of the same bill in its progress through the Senate, it seems not to admit of a doubt that, but for the extraordinary concurrence of extraneous circumstances then co-operating to produce this construction, the right of removal would never have been recognised. While that bill was under consideration in this House, on the 18th July, 1789, a motion was made to strike out of the clause, implying the existence of the right, the words “by the President of the United States,” the object of which was to deny that right altogether. The Senate then sat with closed doors, and we have no account of the discussion. But we see from the records how the vote stood. Mr. Madison’s constitutional opinions were then unpopular in Virginia, as being too latitudinarian; in consequence of which he had lost his election to the Senate, that State being, at the period referred to, represented here by William Grayson and Richard Henry Lee. Both those gentlemen voted against the power and in favor of the motion to strike out; and I suppose that the doctrine of strict constructions of executive power was at that time, as it often since has been, the prevailing sentiment of the State. Georgia, South Carolina, and New Hampshire, were all united against the power, and they were supported by Johnson of Connecticut, and Maclay of Pennsylvania. Among the friends of the motion we find Johnson, Few of Georgia, Butler of South Carolina, and Langdon of New Hampshire, who had all been members of the Federal Convention. Nine voted for the striking out, and nine against it; and Mr. Adams, the Vice President, having given a casting vote in favor of the power, the words were retained. So the honorable gentleman from Tennessee will perceive that he owes the whole of his favorite precedent at last to that same “elder Adams,” the “tendencies of whose opinions” were, if we are to rely on his friend from New Hampshire, “to consolidation and monarchy.” I do not call his attention to this fact, however, because I concur in any of these sweeping denunciations of that great patriot. The same question arose again in the Senate on the 4th of August, 1789, on a motion to strike out of the bill “to establish an Executive Department to be denominated the Department of War,” the words, “and who whenever the said principal officer shall be removed from office by the President of the United States;” and again on the same day, pending the bill “to provide for the government of a territory North West of the Ohio,” which contained a clause recognising the right to remove the Governor of the territory. Similar decisions followed in each of these cases; so that the question was within three weeks thrice decided here; and these decisions form the grounds upon which the power, under its proper constitutional restraints, has ever since been claimed for the Executive. These facts, I submit, leave not a shadow of a doubt that, without the influence which the character of the Father of his Country was calculated to produce upon the minds of the Senators, many of whom were his old compatriots and most intimate friends, and without the powerful co-operation of Mr. Adams, the decisions would have been different. Under such circumstances, I would pause to inquire whether it is reasonable to suppose that the understanding of those Senators who so established this power, was, that the President, upon whom it was conferred, was to exercise it without limitation? Is it probable that uncontrolled and absolute authority would have been acknowledged then, and that, too, by a body of men whose patriotism and devotion to the cause of liberty have never been surpassed?

The opinions of Mr. Adams, on this subject, are probably in a great measure attributable to a belief which he had indulged in opposition to the Federal Convention, that the power of the Senate, in regard to appointments, ought to have been entrusted to “a council selected by the President himself at his pleasure”—in fact, a mere privy council without the authority to check him. He thought that the people would be jealous that the influence of the Senate, if it were entrusted with appointments, would “be employed to conceal, connive at, and defend guilt in Executive officers, instead of being a guard and watch upon them, and a terror to them.” These opinions are disclosed in a correspondence which took place between him and Roger Sherman, in the summer of 1789. With these opinions, thus known to have been entertained by him at the very time when he decided by his casting vote, he went far, we now find, to destroy the rights of the Senate, and to reduce it to a mere privy council without any effective power. In that correspondence Mr. Sherman, who had been a member of the Convention, urged against such opinions the views of that Convention, which ought to have been decisive in favor of the rights of the Senate. “But,” said he, “if the President was left to select a council for himself, though he may be supposed to be actuated by the best motives,—yet he would be surrounded by flatterers who would assume the character of friends and patriots, though they had no attachment to the public good, no regard to the laws of their country, but, influenced wholly by self-interest, would wish to extend the power of the Executive in order to increase their own; they would often advise him to dispense with laws that should thwart their schemes, and in excuse plead that it was done from necessity to promote the public good—they will use their own influence, induce the President to use his to get laws repealed, or the Constitution altered to extend his powers and prerogatives, under pretext of advancing the public good, and gradually render the government a despotism. This seems to be according to the course of human affairs, and what may be expected from the nature of things.” The views of Mr. Adams on this subject appear to have been different from those of any other man who participated in the decisions in 1789, of which we have any information now, as well as from those of the Federal Convention itself.

It is true that Washington exercised this power during his administration. The gentleman from Tennessee produced nine cases as the result of his industrious researches, which had occurred during the whole eight years in which Washington presided, to justify the hundreds which have been made in the first year of this administration. But, in every instance, Washington’s removals were made (and it will not be denied) only when necessary for the public good, exactly complying with the rule which had been established. In announcing the exercise of this right to the Senate, he used the word “superseded” instead of “removed” or “dismissed,” which were subsequently adopted by his successors. But whether he did or did not consider the removals as provisional, and dependent on the future action of the Senate, we have no distinct information. On all occasions he manifested the highest respect for its concurrent powers in the business of Executive appointment, and prescribed a duty for a President, which has certainly not been regarded as such by one of his successors, when in his message of the 9th of February, 1790, containing a few nominations to supply vacancies which had been temporarily filled in the recess, he says, “these appointments will expire with your present session, and, indeed, ought not to endure longer than until others can be regularly made.”

The gentleman from Tennessee informed us of twenty three cases in which Mr. Jefferson had removed; and then read, to justify the immense proscription now made, his answer of the 12th July, 1801, to a remonstrance of the committee of the merchants of New Haven, on the appointment of Samuel Bishop to the office of Collector at New Haven, then lately vacated by the death of David Austin. That letter was doubtless written under some excitement, caused by the memorial itself; and the fame of Mr. Jefferson is rescued from the imputation now attempted to be cast upon it by better evidence. Yet, even in this answer, he places his removal upon the ground that it was for the public good, and to secure the necessary co-operation with the government, expressly stating, too, that his general object was to remedy the very evil now complained of. “During the late administration,” says he, “the whole offices of the United States were monopolized by a sect.” He considered that the former incumbents had been appointed merely for party and personal aggrandizement, and not for the public welfare. Try the present abuses of power by the standard of that letter, and you find yourselves standing on the very doctrine which he repudiated, and the deleterious effects of which he says he endeavored to correct. “I shall correct the procedure; but that done, return with joy to that state of things when the only question concerning a candidate shall be, is he honest?—is he capable?—is he faithful to the Constitution?” The last Administration removed no man for party motives, before the regular expiration of his term, and even went beyond the line prescribed by Mr. Jefferson, by regularly re-appointing political opponents when their offices had expired. You now rest, therefore, on the principles which Mr. Jefferson attributed to the elder Adams, and your policy, as avowed here by the Senator from New Hampshire, does not “follow up the doctrines of the great revolution of 1800.” This construction of the answer to the New Haven remonstrance makes Mr. Jefferson consistent with himself. In his letter to Mr. Gerry of the 29th March, 1801, he says—“officers who have been guilty of gross abuses of office, such as marshals, packing juries, &c. I shall now remove, as my predecessors ought in justice to have done. The instances will be few, and guided by strict rule, and not party passion. The right of opinion shall suffer no invasion from me. Those who have acted well have nothing to fear, however they may have differed from me in opinion.” In other parts of his correspondence we see the same view taken of his constitutional power. On the 6th of July, 1802, in a letter to David Hall, then Governor of Delaware, he acknowledges the receipt of communications covering two addresses, the one from a democratic republican meeting at Dover, and the other from the grand and general juries of the Circuit Court of the United States, both of them praying a removal of Allen McLane, the father of our present Minister to England, from the office of Collector of the Customs at Wilmington. It appears that Mr. McLane was objected to by them, on the ground of personal dislike, and for the alleged warmth of his federal opinions. Mr. Jefferson, in this letter, replying to those addresses, refuses to remove the incumbent for such reasons, “lest he should bring a just censure on his administration.” He says, “we are not acting for ourselves alone, but for the whole human race. We must not, by any departure from principle, dishearten the mass of our fellow citizens.” He then lays down the very principle on which this power can be constitutionally and properly exercised. “If Colonel McLane has done any act inconsistent with his duty as an officer, or as an agent of this administration, this would be legitimate ground for inquiry, into which I should consider myself free to enter.” He takes a distinction between refusing to appoint a political opponent, and removing him during his term, the last of which he refuses to do:—thus leaving your thousand removals from the Post Office and other Departments of the government under the full reprobation of the “doctrines of 1801,” upon which you have attempted to justify them.

The next President whose removals were referred to by the gentleman from Tennessee, was Mr. Madison, our “constitutional lawyer” under whose opinions we have already seen there is no shelter to be found for this administration. Then came Mr. Monroe, who not only disavowed such policy as is now pursued, but practised political tolerance in its widest signification. He had a great constitutional lawyer to advise him—one whose precepts ought to be now adhered to, even as strongly as the gentleman from Tennessee grasped those of Mr. Madison. That constitutional lawyer, Sir, was Andrew Jackson, whose advice on any question should not be slightingly passed over by the gentleman from Tennessee, and especially when we are considering the special force and efficacy of the second section of this article, in the Constitution. On the 12th of November, 1816, before Mr. Monroe’s election had been officially announced, he gives this magnanimous view of the duties of a Chief Magistrate: “In every selection, party and party feelings should be avoided. Now is the time to exterminate that monster, called party spirit. By selecting characters most conspicuous for their probity, virtue, capacity and firmness, without any regard to party, you will go far to, if not entirely eradicate, those feelings which on former occasions threw so many obstacles in the way of government, and perhaps have the pleasure and honour of uniting a people heretofore politically divided. The Chief Magistrate of a great and powerful nation should never indulge in party feeling. His conduct should be liberal and disinterested, always bearing in mind that he acts for the whole, and not a part of the community. By this course you will exalt the national character, and acquire for yourself a name as imperishable as monumental marble. Consult no party in your choice: pursue the dictates of that unerring judgment which has so long and so often benefitted our country, and rendered conspicuous its rulers. These are the sentiments of a friend; they are the feelings, if I know my own heart, of an undissembled patriot.” It may be said, Sir, that this constitutional lawyer has since abandoned these views as unsound. But I ask when? Why, as late as May, 1824, he maintained the same moral and mental elevation, confirming the same opinions, and imprinting them more deeply by the increased authoritative sanction of his own great name. In a letter to the Hon. George Kremer, of that date, so far from retracting them, he says, “My advice to the President was, that he should act upon principles like these:—Consider himself the head of the Nation, not of a party; that he should have around him the best talents the country could afford, without regard to sectional divisions; and should, in his selection, seek after men of probity, virtue, capacity and firmness; and, in this way, he would go far to eradicate those feelings which, on former occasions, threw so many obstacles in the way of government, and be enabled perhaps to unite a people heretofore politically divided.” Those who delight to view the result of the last Presidential election as a verdict rendered by the people on an issue joined, can best inform us how far these sentiments and constitutional opinions should be viewed as having formed a part of that issue, and how far they were sanctioned by the then expression of popular approbation.

These opinions and precedents of great constitutional lawyers lead us to other reflections upon the general expediency of the two doctrines, and the probable reasoning of those who made our constitution. By the old articles of confederation, the power of appointment was vested in Congress. Under the present Constitution the same power was transferred to the President and Senate. The House of Representatives, chosen biennially, was not entrusted with any portion of this important power. Why not? Honorable gentlemen have strongly pressed the importance of what they call the principle of rotation or change in office, to comply with the popular will. The House of Representatives being entirely subject to the mutability of popular opinion, would be most apt to change with every popular breeze, and give effect to that opinion. Did this escape the intellects of the fathers of the Republic? Sir, if we are to accredit their contemporaneous expositions of the Constitution, and the very writings which procured its ratification, their reason for not investing the Representatives with this power, was to prevent the removal of valuable officers with every popular change, and to give stability to the administration of the government. Moreover, when the gentleman from New Hampshire states here, that the same political causes which induce the people to change their Chief Magistrate, should operate upon all the subordinates, agents and deputies, he forgets that the popular attention never is, and never can be, while absorbed by the consideration of the merits and demerits of contending candidates for the first office in their gift, sufficiently diverted to decide upon all the officers in the country. In a State or a small territory where the people know all their officers, they may act with a view to them. But hundreds of thousands voted, during the last great political contest, for men politically opposed to officers whom they had never seen, and of whom they knew nothing—nay, to their dearest friends whom they neither wished nor expected should be removed. You cannot justify your course, then, by saying it is the popular will, and especially when your President, with his election in full view, and with a knowledge of the effect of the sentiment of the public, told us that “the Chief Magistrate of a great and powerful nation should never indulge in party feeling.” Under such circumstances, is it not fair to conclude, that if his election must be regarded as any expression of popular will, in regard to subordinate officers, that will was in favor of his sentiment, and against the indulgence of party feeling to remove them. Still I admit that although the great mass of the nation know little, and care less, in the election of a President, about the qualifications of inferior officers, yet they have in recent practice been too much guided in their choice by the hopes of Executive patronage, and the love of office. And it is time to lay before them the true principles of their Constitution, which teach that for the gratification of personal ambition or the mere elevation of a party, for private pique or for personal vengeance, for the free exercise of the right of opinion, for hatred or for favoritism, or for any other cause than to secure a faithful discharge of public service for the public good, Executive power cannot be legitimately exercised; and shall now and forever after be effectually and fearlessly restrained. The expectants “for dead men’s shoes” will then disappear. The elective franchise will be restored to its pristine purity. Executive patronage will no longer teach us at the polls that “power over a man’s support is power over his will,” and the action of our government will, by thus cleansing the very spring from which it flows, become henceforth refined, healthful, and vigorous. But if these principles be now disregarded, despised and prostrated, our people will be converted into office hunters, the contest for power will be every where conducted without reference to principle, the elective franchise will sink under the influence of personal hopes and personal fears, universal corruption will be substituted for that virtue without which a republic cannot exist, and at the expiration of every four years the tumult will swell, and the venality will fester, until, the depravity of the whole system of government being no longer tolerable,—disgusted, dejected, and dispirited by the complete failure of our attempt at self-government, we shall sink into the arms of the first Caesar who shall be willing to strike a mortal blow at the liberties of his country. Let me not be told, then, that the most sacred of our constitutional privileges is to become the victim of any slovenly draftsman of a commission or a statute, confounding Executive power with Executive pleasure. By the paramount law of the land, a President can officially know no pleasure but the people’s interest, and when you suffer him to sink the officer in the man, you violate its simplest and most salutary restrictions.

With this view of the duties of a Chief Magistrate, and of his constitutional power, it must occur that as his authority to remove can be exercised only for cause, there must be some tribunal to inquire into and ascertain that cause. I regard this right, though denied by the gentleman from Tennessee, as a necessary incident of the advisory power of the Senate. We know well that here is a great dividing line between us in this body. One party here denies our constitutional right to put such troublesome questions, or to test any part of the groundwork of our “great and glorious reform.” We want to learn a little of the rationale of this operation. We have been all along, as you tell us, benighted and in the dark. Give us light, then, we say. We consider ourselves bound to advise the Chief Magistrate in his appointments. We are not restricted to a mere expression of consent to, or dissent from, his nomination. We may, aye, must go further. If you ask me whether I will consent to a choice which you alone can make, I may answer, yes. But if you ask me whether I will advise you so to choose, I might point you to a better. The words advice and consent are not synonymous—their meaning is essentially different. Consent is the mere agreement of the mind to what is proposed by another. Advice ordinarily implies the recommendation of some opinion, or the offering of some information worthy to be weighed and acted upon by another. The gentleman from Tennessee, expressing an opinion current, as we all know, among his political friends here, denies the constitutional right of the Senate to examine into and judge of the propriety of removals from office, and declares that our power is confined to the question of fitness or unfitness of the person nominated to succeed. Now, if A be removed from office, and B nominated to supply the vacancy, were only our consent asked on the appointment of B, we might possibly, adopting his construction, vote aye; when, if we are asked whether we would advise as well as consent to the appointment, we might answer, “no; we know a thousand better men, though we do not think the nominee absolutely unfit. We think the man removed is a better man.” It is

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John M. Clayton: Speech of Mr. Clayton , of Delaware [March 4, 1830] - Daniel Webster, The Webster-Hayne Debate on the Nature of the Constitution: Selected Documents [1830]

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John M. Clayton

Speech of Mr. Clayton, of Delaware[March 4, 1830]

Speech of Mr. Clayton,
of Delaware

[March 4, 1830]