Chapter XVII: Preface (15)

It is a subject no less of curiosity than of interest, to trace the prejudices in favor of foreign fabrics. In our colonial condition, we were in a complete state of dependence on the parent country, as it respected manufactures, as well as commerce. For many years after the war, such was the partiality for her productions, in this country, that a gentleman’s head could not withstand the influence of solar heat, unless covered with a London hat; his feet could not bear the pebbles, or frost, unless protected by London shoes; and the comfort or ornament of his person was only consulted when his coat was cut out by the shears of a tailor ‘just from London.’ At length, however, the wonderful _discovery_ has been made, that it is not absolutely beyond the reach of American skill and ingenuity, to provide these articles, combining with equal elegance greater durability. And I entertain no doubt, that, in a short time, the no less important fact will be developed, that the domestic manufactories of the United States, fostered by government, and aided by household exertions, are fully competent to supply us with at least every necessary article of clothing. I therefore, sir, _for one_ (to use the fashionable cant of the day), am in favor of encouraging them, not to the extent to which they are carried in England, but to such an extent as will redeem us entirely from all dependence on foreign countries. There is a pleasure――a pride (if I may be allowed the expression, and I pity those who cannot feel the sentiment,)――in being clad in the productions of our own families. Others may prefer the cloths of Leeds and of London, but give me those of Humphreysville.

Aid may be given to native institutions in the form of bounties and of protecting duties. But against bounties it is urged, that you tax the _whole_ for the benefit of a _part_ only, of the community; and in opposition to duties it is alleged, that you make the interest of one part, the consumer, bend to the interest of another part, the manufacturer. The sufficiency of the answer is not always admitted, that the sacrifice is merely temporary, being ultimately compensated by the greater abundance and superiority of the article produced by the stimulus. But, of all practicable forms of encouragement, it might have been expected, that the one under consideration would escape opposition, if every thing proposed in congress were not doomed to experience it. What is it? The bill contains two provisions――one prospective, anticipating the appropriation for clothing for the army, and the amendment proposes extending it to naval supplies, for the year 1811――and the other, directing a preference to be given to home manufactures, and productions, whenever it can be done _without material detriment to the public service_. The object of the first is, to authorize contracts to be made beforehand, with manufacturers, and by making advances to them, under proper security, to enable them to supply the articles wanted, in sufficient quantity. When it is recollected that they are frequently men of limited capitals, it will be acknowledged that this kind of assistance, bestowed with prudence, will be productive of the best results. It is, in fact, only pursuing a principle long acted upon, of advancing to contractors with government, on account of the magnitude of their engagements. The appropriation contemplated to be made for the year 1811, may be restricted to such a sum as, whether we have peace or war, we must necessarily expend. The discretion is proposed to be vested in officers of high confidence, who will be responsible for its abuse, and who are enjoined to see that the public service receives no _material detriment_. It is stated, that hemp is now very high, and that contracts, made under existing circumstances, will be injurious to government. But the amendment creates no obligation upon the secretary of the navy, to go into market at this precise moment. In fact, by enlarging his sphere of action, it admits of his taking advantage of a favorable fluctuation, and getting a supply below the accustomed price, if such a fall should occur prior to the usual annual appropriation.

I consider the amendment, under consideration, of the first importance, in point of principle. It is evident, that whatever doubt may be entertained, as to the general policy of the manufacturing system, none can exist, as to the propriety of our being able to furnish ourselves with articles of the first necessity, in time of war. Our maritime operations ought not, in such a state, to depend upon the casualties of foreign supply. It is not necessary that they should. With very little encouragement from government, I believe we shall not want a pound of Russia hemp. The increase of the article in Kentucky has been rapidly great. Ten years ago there were but two rope manufactories in the state. Now there are about twenty, and between ten and fifteen of cotton bagging; and the erection of new ones keeps pace with the annual augmentation of the quantity of hemp. Indeed, the western country, alone, is not only adequate to the supply of whatever of this article is requisite for our own consumption, but is capable of affording a surplus for foreign markets. The amendment proposed possesses the double recommendation of encouraging, at the same time, both the manufacture and the growth of hemp. For by increasing the demand for the wrought article, you also increase the demand for the raw material, and consequently present new incentives to its cultivator.

The three great subjects that claim the attention of the national legislature, are the interests of agriculture, commerce, and manufactures. We have had before us, a proposition to afford a manly protection to the rights of commerce, and how has it been treated? Rejected! You have been solicited to promote agriculture, by increasing the facilities of internal communication, through the means of canals and roads, and what has been done? Postponed! We are now called upon to give a trifling support to our domestic manufactures, and shall we close the circle of congressional inefficiency, by adding this also to the catalogue?

ON THE LINE OF THE PERDIDO.

IN THE SENATE OF THE UNITED STATES, DECEMBER 25, 1810.

[THE _Perdido_ is the name of a river and bay, which form the
boundary line between the present state of Alabama and Florida.
It will be recollected, that Florida was a Spanish colony,
previous to its cession to the United States by Spain, in 1819.
It was discovered by Juan Ponce de Leon, a Spanish navigator,
in 1512, and by him it was called Florida. The French made an
attempt to colonize the territory in 1562, but their settlement
was broken up by the Spaniards, who founded, in 1565, the city
of St. Augustine, in East Florida. Pensacola, in West Florida,
was founded in 1699. Though often invaded by the French and
English, Florida remained part of Spanish America until 1763,
when it was ceded to Great Britain: but, by the definitive
treaty of 1783, it was receded by Great Britain to Spain. When
Florida was a colony of Spain, and Louisiana of France, or from
1699 to 1763, the Perdido river was a common boundary, but,
by the treaty of 1763, Louisiana having been ceded by France
to Spain, the Spaniards in 1769, for their own convenience,
incorporated that part of Louisiana, between the Mississippi
and Perdido rivers, with Florida. This act caused a controversy
between Spain and the United States; the latter having purchased
Louisiana of France, in 1803, to which power it had been ceded
by Spain, in 1800. President Madison, in 1810, took possession
of the territory in dispute, for which act he was assailed by
the opposition members in the senate, particularly by Mr. Horsey,
of Delaware; to whom Mr. Clay replied, in defence of the
administration, as follows.]

MR. PRESIDENT,

IT would have gratified me if some other gentleman had undertaken to reply to the ingenious argument, which you have just heard. (Speech of Mr. Horsey.) But not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence, whilst I offer my sentiments on this subject, so interesting to the union at large, but especially to the western portion of it. Allow me, sir, to express my admiration at the more than Aristidean justice, which, in a question of territorial title between the United States and a foreign nation, induces certain gentlemen to espouse the pretensions of the foreign nation. Doubtless, in any future negotiations, she will have too much magnanimity to avail herself of these spontaneous concessions in her favor, made on the floor of the senate of the United States.

It was to have been expected, that, in a question like the present, gentlemen, even on the same side, would have different views, and although arriving at a common conclusion, would do so by various arguments. And hence the honorable gentleman from Vermont, entertains doubt with regard to our title against Spain, whilst he feels entirely satisfied of it against France. Believing, as I do, that our title against both powers is indisputable, under the treaty of St. Ildefonso, between Spain and France, and the treaty between the French republic and the United States, I shall not inquire into the treachery, by which the king of Spain is alleged to have lost his crown; nor shall I stop to discuss the question involved in the overthrow of the Spanish monarchy, and how far the power of Spain ought to be considered as merged in that of France. I shall leave the honorable gentleman from Delaware to mourn over the fortunes of the fallen Charles. I have no commiseration for princes. My sympathies are reserved for the great mass of mankind, and I own that the people of Spain have them most sincerely.

I will adopt the course suggested by the nature of the subject, and pursued by other gentlemen, of examining into our title to the country lying between the Mississippi and the Rio Perdido, (which, to avoid circumlocution, I will call West Florida, although it is not the whole of it,) and the propriety of the recent measures taken for the occupation of that territory. Our title, then, depends, first, upon the limits of the province or colony of Louisiana, and, secondly, upon a just exposition of the treaties before mentioned.

On this occasion it is only necessary to fix the eastern boundary. In order to ascertain this, it will be proper to take a cursory view of the settlement of the country, because the basis of European title to colonies in America, is prior discovery, or prior occupancy. In 1682, La Salle migrated from Canada, then owned by France, descended the Mississippi, and named the country which it waters, Louisiana. About 1698, D’Iberville discovered, by sea, the mouth of the Mississippi, established a colony at the Isle Dauphine, or Massacre, which lies at the mouth of the bay of Mobile, and one at the mouth of the river Mobile, and was appointed, by France, governor of the country. In the year 1717, the famous West India Company sent inhabitants to the Isle Dauphine, and found some of those who had been settled there under the auspices of D’Iberville. About the same period, Baloxi, near the Pascagoula, was settled. In 1719, the city of New Orleans was laid off, and the seat of government of Louisiana was established there; and in 1736 the French erected a fort on Tombigbee. These facts prove that France had the actual possession of the country as far east as the Mobile, at least. But the great instrument which ascertains, beyond all doubt, that the country in question is comprehended within the limits of Louisiana, is one of the most authentic and solemn character which the archives of a nation can furnish; I mean the patent granted in 1712, by Louis XIV, to Crozat. [Here Mr. C. read such parts of the patent as were applicable to the subject.[2]] According to this document, in describing the province or colony of Louisiana, it is declared to be bounded by Carolina on the east, and Old and New Mexico on the west. Under this high record evidence, it might be insisted that we have a fair claim to East as well as West Florida, against France, at least, unless she has, by some convention, or other obligatory act, restricted the eastern limit of the province. It has, indeed, been asserted, that, by a treaty between France and Spain, concluded in the year 1719, the Perdido was expressly stipulated to be the boundary between their respective provinces of Florida on the east, and Louisiana on the west; but as I have been unable to find any such treaty, I am induced to doubt its existence.

About the same period, to wit, towards the close of the seventeenth century, when France settled the Isle Dauphine, and the Mobile, Spain erected a fort at Pensacola. But Spain never pushed her actual settlements, or conquests, farther west than the bay of Pensacola, whilst those of the French were bounded on the east by the Mobile. Between those two points, a space of about thirteen or fourteen leagues, neither nation had the exclusive possession. The Rio Perdido, forming the bay of the same name, discharges itself into the Gulf of Mexico, between the Mobile and Pensacola, and, being a natural and the most notorious object between them presented itself as a suitable boundary between the possessions of the two nations. It accordingly appears very early to have been adopted as the boundary, by tacit if not expressed consent. The ancient charts and historians, therefore, of the country, so represent it. Dupratz, one of the most accurate historians of the time, in point of fact and detail, whose work was published as early as 1758, describes the coast as being bounded on the east by the Rio Perdido. In truth, sir, no European nation whatever, except France, ever occupied any portion of West Florida, prior to her cession of it to England, in 1762. The gentlemen on the other side do not, indeed, strongly controvert, if they do not expressly admit, that Louisiana, as held by the French anterior to her cessions of it in 1762, extended to the Perdido. The only observation made by the gentleman from Delaware to the contrary, to wit, that the island of New Orleans, being particularly mentioned, could not, for that reason, constitute a part of Louisiana, is susceptible of a very satisfactory answer. That island was excepted out of the grant to England, and was the only part of the province east of the river that was so excepted. It formed in itself one of the most prominent and important objects of the cession to Spain originally, and was transferred to her with the portion of the province west of the Mississippi. It might with equal propriety be urged that St. Augustine is not in East Florida, because St. Augustine is expressly mentioned by Spain in her cession of that province to England. From this view of the subject, I think it results that the province of Louisiana comprised West Florida, previous to the year 1762.

What was done with it at this epoch? By a secret convention of the third of November, of that year, France ceded the country lying west of the Mississippi, and the island of New Orleans, to Spain; and by a contemporaneous act, the articles preliminary to the definitive treaty of 1763, she transferred West Florida to England. Thus, at the same instant of time, she alienated the whole province. Posterior to this grant, Great Britain, having also acquired from Spain her possessions east of the Mississippi, erected the country into two provinces, East and West Florida. In this state of things it continued until the peace of 1783, when Great Britain, in consequence of the events of the war, surrendered the country to Spain, who, for the _first_ time, came into actual possession of West Florida. Well, sir, how does she dispose of it? She reannexes it to the residue of Louisiana――extends the jurisdiction of that government to it, and subjects the governors, or commandants, of the districts of Baton Rouge, Feliciana, Mobile, and Pensacola, to the authority of the governor of Louisiana, residing at New Orleans; while the governor of East Florida is placed wholly without his control, and is made amenable directly to the governor of the Havannah. Indeed, sir, I have been credibly informed, that all the concessions, or grants of land, made in West Florida, under the authority of Spain, run in the name of the _government of Louisiana_. You cannot have forgotten that, about the period when we took possession of New Orleans, under the treaty of cession from France, the whole country resounded with the nefarious speculations, which were alleged to be making in that city with the connivance, if not actual participation, of the Spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of Feliciana. West Florida, then, not only as France had held it, but as it was in the hands of Spain, made a part of the province of Louisiana; as much so as the jurisdiction or district of Baton Rouge constituted a part of West Florida.

What, then, is the true construction of the treaties of St. Ildefonso, and of April, 1803, from whence our title is derived? If an ambiguity exist in a grant, the interpretation most favorable to the grantee is preferred. It was the duty of the grantor to have expressed himself in plain and intelligible terms. This is the doctrine, not of Coke only, (whose dicta I admit have nothing to do with the question,) but of the code of universal law. The doctrine is entitled to augmented force, when a clause only of the instrument is exhibited, in which clause the ambiguity lurks, and the residue of the instrument is kept back by the grantor. The entire convention of 1762, by which France transferred Louisiana to Spain, is concealed, and the whole of the treaty of St. Ildefonso, except a solitary clause. We are thus deprived of the aid which a full view of both of those instruments would afford. But we have no occasion to resort to any rules of construction, however reasonable in themselves, to establish our title. A competent knowledge of the facts connected with the case, and a candid appeal to the treaties, are alone sufficient to manifest our right. The negotiators of the treaty of 1803, having signed, with the same ceremony, two copies, one in English and the other in the French language, it has been contended, that in the English version the term ‘cede’ has been erroneously used instead of ‘retrocede,’ which is the expression in the French copy. And it is argued, that we are bound by the phraseology of the French copy, because it is declared that the treaty was agreed to in that language. It would not be very unfair to inquire, if this is not like the common case in private life, where individuals enter into a contract of which each party retains a copy, duly executed. In such case, neither has the preference. We might as well say to France, we will cling by the English copy, as she could insist upon an adherence to the French copy; and if she urged ignorance on the part of Mr. Marbois, her negotiator, of our language, we might with equal propriety plead ignorance, on the part of our negotiators, of her language. As this, however, is a disputable point, I do not avail myself of it; gentlemen shall have the full benefit of the expressions in the French copy. According to this, then, in reciting the treaty of St. Ildefonso, it is declared by Spain, in 1800, that she retrocedes to France, the colony or province of Louisiana, with the same extent which it then had in the hands of Spain, and which it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other states. This latter member of the description has been sufficiently explained by my colleague.

It is said, that since France, in 1762, ceded to Spain only Louisiana west of the Mississippi, and the Island of New Orleans, the retrocession comprehended no more――that the retrocession _ex vi termini_ was commensurate with and limited by the direct cession from France to Spain. If this were true, then the description, such as Spain held it, that is, in 1800, comprising West Florida, and such as France possessed it, that is, in 1762, prior to the several cessions, comprising also West Florida, would be totally inoperative. But the definition of the term retrocession contended for by the other side is denied. It does not exclude the instrumentality of a third party. It means restoration, or reconveyance of a thing originally ceded, and so the gentleman from Delaware acknowledged. I admit that the thing restored, must have come to the restoring party from the party to whom it is retroceded; whether directly or indirectly is wholly immaterial. In its passage, it may have come through a dozen hands. The retroceding party must claim _under_ and in virtue of the right originally possessed by the party to whom the retrocession takes place. Allow me to put a case. You own an estate called Louisiana. You convey one moiety of it to the gentleman from Delaware, and the other to me; he conveys his moiety to me, and I thus become entitled to the whole. By a suitable instrument, I reconvey, or retrocede the estate called Louisiana to you as I now hold it, and as you held it; what passes to you? The whole estate or my moiety only? Let me indulge another supposition――that the gentleman from Delaware, after he received from you his moiety, bestowed a new denomination upon it and called it West Florida; would that circumstance vary the operation of my act of retrocession to you? The case supposed, is, in truth, the real one between the United States and Spain. France, in 1762, transfers Louisiana, west of the Mississippi, to Spain, and at the same time conveys the eastern portion of it, exclusive of New Orleans, to Great Britain. Twenty-one years after, that is, in 1783, Great Britain cedes her part to Spain, who thus becomes possessed of the entire province; one portion by direct cession from France, and the residue by indirect cession. Spain, then, held the whole of Louisiana _under_ France, and in virtue of the title of France. The whole moved or passed from France to her. When, therefore, in this state of things, she says, in the treaty of St. Ildefonso, that she retrocedes the province to France, can a doubt exist that she parts with, and gives back to France the entire colony? To preclude the possibility of such a doubt, she adds, that she restores it, not in a mutilated condition, but in that precise condition in which France had and she herself possessed it.

Having thus shown, as I conceive, a clear right in the United States to West Florida, I proceed to inquire, if the proclamation of the president directing the occupation of property, which is thus fairly acquired by solemn treaty, be an unauthorized measure of war and of legislation, as has been contended?

The act of October, 1803, contains two sections, by one of which the president is authorized to occupy the territories ceded to us by France in the April preceding. The other empowers the president to establish a provisional government there. The first section is unlimited in its duration; the other is restricted to the expiration of the then session of congress. The act, therefore, of March, 1804, declaring that the previous act of October should continue in force until the first of October, 1804, is applicable to the second and not the first section, and was intended to continue the provisional government of the president. By the act of twenty-fourth February, 1804, for laying duties on goods imported into the ceded territories, the president is empowered _whenever he deems it expedient_ to erect the bay and river Mobile, &c. into a separate district, and to establish therein a port of entry and delivery. By this same act the Orleans territory is laid off, and its boundaries are so defined, as to comprehend West Florida. By other acts the president is authorized to remove by force, under certain circumstances, persons settling on, or taking possession of lands ceded to the United States.

These laws furnish a legislative construction of the treaty, corresponding with that given by the executive, and they indisputably vest in this branch of the general government the power to take possession of the country, whenever it might be proper in his discretion. The president has not, therefore, violated the constitution and usurped the war-making power, but he would have violated that provision which requires him to see that the laws are faithfully executed, if he had longer forborne to act. It is urged, that he has assumed powers belonging to congress, in undertaking to annex the portion of West Florida, between the Mississippi and the Perdido, to the Orleans territory. But congress, as has been shown, has already made this annexation, the limits of the Orleans territory, as prescribed by congress, comprehending the country in question. The president, by his proclamation, has not made law, but has merely declared to the people of West Florida, what the law is. This is the office of a proclamation, and it was highly proper that the people of that territory should be thus notified. By the act of occupying the country, the government _de facto_, whether of Spain, or the revolutionists, ceased to exist; and the laws of the Orleans territory, applicable to the country, by the operation and force of law, attached to it. But this was a state of things which the people might not know, and which every dictate of justice and humanity, therefore, required should be proclaimed. I consider the bill before us merely in the light of a declaratory law.

Never could a more propitious moment present itself, for the exercise of the discretionary power placed in the president; and, had he failed to embrace it, he would have been criminally inattentive to the dearest interests of this country. It cannot be too often repeated, that if Cuba on the one hand, and Florida on the other, are in the possession of a foreign maritime power, the immense extent of country belonging to the United States, and watered by streams discharging themselves into the Gulf of Mexico――that is, one third, nay, more than two thirds of the United States, comprehending Louisiana, are placed at the mercy of that power. The possession of Florida is a guarantee absolutely necessary to the enjoyment of the navigation of those streams. The gentleman from Delaware anticipates the most direful consequences, from the occupation of the country. He supposes a sally from a Spanish garrison upon the American forces, and asks what is to be done? We attempt a peaceful possession of the country to which we are fairly entitled. If the wrongful occupants, under the authority of Spain, assail our troops, I trust they will retrieve the lost honor of the nation, in the case of the Chesapeake. Suppose an attack upon any portion of the American army, within the acknowledged limits of the United States, by a Spanish force? In such event, there would exist but a single honorable and manly course. The gentleman conceives it ungenerous, that we should at this moment, when Spain is encompassed and pressed, on all sides, by the immense power of her enemy, occupy West Florida. Shall we sit by, passive spectators, and witness the interesting transactions of that country――transactions which tend, in the most imminent degree, to jeopardize our rights, without attempting to interfere? Are you prepared to see a foreign power seize what belongs to us? I have heard, in the most credible manner, that, about the period when the president took his measures in relation to that country, agents of a foreign power were intriguing with the people there, to induce them to come under his dominion; but whether this be the fact or not, it cannot be doubted, that, if you neglect the present auspicious moment, if you reject the proffered boon, some other nation, profiting by your errors, will seize the occasion to get a fatal footing in your southern frontier. I have no hesitation in saying, that if a parent country will not or cannot maintain its authority, in a colony adjacent to us, and there exists in it a state of misrule and disorder, menacing our peace; and if, moreover, such colony, by passing into the hands of any other power, would become dangerous to the integrity of the union, and manifestly lend to the subversion of our laws; we have a right, upon the eternal principles of self-preservation, to lay hold upon it. This principle alone, independent of any title, would warrant our occupation of West Florida. But it is not necessary to resort to it――our title being, in my judgment, incontestably good. We are told of the vengeance of resuscitated Spain. If Spain, under any modification of her government, choose to make war upon us, for the act under consideration, the nation, I have no doubt, will be willing to embark in such a contest. But the gentleman reminds us that Great Britain, the ally of Spain, may be obliged, by her connection with that country, to take part with her against us, and to consider this measure of the president as justifying an appeal to arms. Sir, is the time never to arrive, when we may manage our own affairs without the fear of insulting his Britannic majesty? Is the rod of British power to be for ever suspended over our heads? Does congress put on an embargo to shelter our rightful commerce against the piratical depredations committed upon it on the ocean? We are immediately warned of the indignation of offended England. Is a law of non-intercourse proposed? The whole navy of the haughty mistress of the seas, is made to thunder in our ears. Does the president refuse to continue a correspondence with a minister, who violates the decorum belonging to his diplomatic character, by giving and deliberately repeating an affront to the whole nation? We are instantly menaced with the chastisement which English pride will not fail to inflict. Whether we assert our rights by sea, or attempt their maintenance by land――whithersoever we turn ourselves, this phantom incessantly pursues us. Already has it had too much influence on the councils of the nation. It contributed to the repeal of the embargo――that dishonorable repeal, which has so much tarnished the character of our government. Mr. President, I have before said on this floor, and now take occasion to remark, that I most sincerely desire peace and amity with England; that I even prefer an adjustment of all differences with her, before one with any other nation. But if she persists in a denial of justice to us, or if she avails herself of the occupation of West Florida, to commence war upon us, I trust and hope that all hearts will unite, in a bold and vigorous vindication of our rights. I do not believe, however, in the prediction, that war will be the effect of the measure in question.

It is asked, why, some years ago, when the interruption of the right of deposit took place at New Orleans, the government did not declare war against Spain; and how it has happened, that there has been this long acquiescence in the Spanish possession of West Florida. The answer is obvious. It consists in the genius of the nation, which is prone to peace; in that desire to arrange, by friendly negotiation, our disputes with all nations, which has constantly influenced the present and preceding administration; and in the jealousy of armies, with which we have been inspired by the melancholy experience of free estates. But a new state of things has arisen; negotiation has become hopeless. The power with whom it was to be conducted, if not annihilated, is in a situation that precludes it; and the subject matter of it is in danger of being snatched for ever from our power. Longer delay would be construed into a dereliction of our right, and would amount to treachery to ourselves. May I ask, in my turn, why certain gentlemen, now so fearful of war, were so urgent for it with Spain, when she withheld the right of deposit? and still later, when in 1805 or 6, this very subject of the actual limits of Louisiana, was before congress? I will not say, because I do not know that I am authorized to say, _that the motive is to be found_ in the change of relation, between Spain and other European powers, since those periods.

Does the honorable gentleman from Delaware really believe, that he finds in St. Domingo a case parallel with that of West Florida? and that our government, having interdicted an illicit commerce with the former, ought not to have interposed in relation to the latter? It is scarcely necessary to consume your time by remarking, that we had no pretensions to that island; that it did not menace our repose, nor did the safety of the United States require that they should occupy it. It became, therefore, our duty to attend to the just remonstrance of France, against American citizens’ supplying the rebels with the means of resisting her power.

I am not, sir, in favour of cherishing the passion of conquest. But I must be permitted, in conclusion, to indulge the hope of seeing, ere long, the _new_ United States (if you will allow me the expression) embracing, not only the old thirteen States, but the entire country east of the Mississippi, including East Florida, and some of the territories of the north of us also.

ON RENEWING THE CHARTER OF THE FIRST BANK OF THE UNITED STATES.

IN THE SENATE OF THE UNITED STATES, 1811

[THE Bank of the United States, which was incorporated by an act
of congress, during the administration of general Washington, in
1791, having applied to congress for a renewal of its charter,
which was to expire, by limitation, in 1811; the question came
up first for decision in the senate. The renewal was advocated
by the federal members, and by Mr. Crawford, of Georgia, Mr.
Pope, the colleague of Mr. Clay, also by a few other democratic
senators; and the bill was finally defeated, by the casting
vote of the vice president (George Clinton). Mr. Clay, having
been instructed by the legislature of Kentucky to oppose the
renewal of the charter, acted in obedience to those instructions,
notwithstanding the opposite course of his colleague. His
argument against the bill, shows that he then believed the bank
charter unconstitutional――an opinion which subsequent reflection
and examination induced him to reverse, some years afterwards.
In this change of opinion, he was sustained by the example of
Mr. Madison, who signed the charter of the bank, incorporated in
1816, and other eminent statesmen. This being the only subject
of great importance on which Mr. Clay has been known to have
changed his views of national policy, during his long public
career, the following speech will be read with much interest.]

MR. PRESIDENT,

When the subject involved in the motion now under consideration was depending before the other branch of the legislature, a disposition to acquiesce in their decision was evinced. For although the committee who reported this bill, had been raised many weeks prior to the determination of that house, on the proposition to recharter the bank, except the occasional reference to it of memorials and petitions, we scarcely ever heard of it. The rejection, it is true, of a measure brought before either branch of congress, does not absolutely preclude the other from taking up the same proposition; but the economy of our time, and a just deference for the opinion of others, would seem to recommend a delicate and cautious exercise of this power. As this subject, at the memorable period when the charter was granted, called forth the best talents of the nation, as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to be hoped that we should have been spared useless debate. This was the more desirable, because there are, I conceive, much superior claims upon us, for every hour of the small portion of the session yet remaining to us. Under the operation of these motives, I had resolved to give a silent vote, until I felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties I owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law. After my honorable friend from Virginia (Mr. Giles) had instructed and amused us, with the very able and ingenious argument, which he delivered on yesterday, I should have still forborne to trespass on the senate, but for the extraordinary character of his speech. He discussed both sides of the question, with great ability and eloquence, and certainly demonstrated, to the satisfaction of all who heard him, both that it was constitutional and unconstitutional, highly proper and improper, to prolong the charter of the bank. The honorable gentleman appeared to me in the predicament in which the celebrated orator of Virginia, Patrick Henry, is said to have been once placed. Engaged in a most extensive and lucrative practice of the law, he mistook, in one instance, the side of the cause in which he was retained, and addressed the court and jury in a very masterly and convincing speech, in behalf of his antagonist. His distracted client came up to him, whilst he was thus employed, and, interrupting him, bitterly exclaimed, ‘you have undone me! You have ruined me!’ ‘Never mind, give yourself no concern,’ said the adroit advocate; and, turning to the court and jury, continued his argument, by observing, ‘may it please your honors, and you, gentlemen of the jury, I have been stating to you what I presume my adversary may urge on his side. I will now show you how fallacious his reasonings, and groundless his pretensions, are.’ The skilful orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause!――a success with which I trust the exertion of my honorable friend will on this occasion be crowned.

It has been said, by the honorable gentleman from Georgia (Mr. Crawford), that this has been made a party question; although the law incorporating the bank was passed prior to the formation of parties, and when congress was not biassed by party prejudices. (Mr. Crawford explained. He did not mean, that it had been made a party question in the senate. His allusion was elsewhere.) I do not think it altogether fair, to refer to the discussions in the house of representatives, as gentlemen belonging to that body have no opportunity of defending themselves here. It is true that this law was not the effect, but it is no less true that it was one of the causes, of the political divisions in this country. And if, during the agitation of the present question, the renewal has, on one side, been opposed on party principles, let me ask if, on the other, it has not been advocated on similar principles. Where is the Macedonian phalanx, the opposition, in congress? I believe, sir, I shall not incur the charge of presumptuous prophecy, when I predict we shall not pick up from its ranks one single straggler! And if, on this occasion, my worthy friend from Georgia has gone over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?

I shall not stop to examine how far a representative is bound by the instructions of his constituents. That is a question between the giver and receiver of the instructions. But I must be permitted to express my surprise at the pointed difference which has been made between the opinions and instructions of state legislatures, and the opinions and details of the deputations with which we have been surrounded from Philadelphia. Whilst the resolutions of those legislatures――known, legitimate, constitutional, and deliberative bodies――have been thrown into the back-ground, and their interference regarded as officious; these delegations from self-created societies, composed of nobody knows whom, have been received by the committee, with the utmost complaisance. Their communications have been treasured up with the greatest diligence. Never did the Delphic priests collect with more holy care the frantic expressions of the agitated Pythia, or expound them with more solemnity to the astonished Grecians, than has the committee gathered the opinions and testimonies of these deputies, and, through the gentleman from Massachusetts, pompously detailed them to the senate! Philadelphia has her immediate representatives, capable of expressing her wishes, upon the floor of the other house. If it be improper for states to obtrude upon congress their sentiments, it is much more highly so, for the unauthorized deputies of fortuitous congregations.

The first singular feature that attracts attention in this bill, is the new and unconstitutional veto which it establishes. The constitution has required only, that after bills have passed the house of representatives and the senate, they shall be presented to the president, for his approval or rejection; and his determination is to be made known in ten days. But this bill provides, that when all the constitutional sanctions are obtained, and when, according to the usual routine of legislation, it ought to be considered as a law, it is to be submitted to a new branch of the legislature, consisting of the president and twenty-four directors of the bank of the United States, holding their sessions in Philadelphia; and if they please to approve it, why then is it to become a law! And three months (the term allowed by our law of May last, to one of the great belligerents, for revoking his edicts, after the other shall have repealed his) are granted them, to decide whether an act of congress shall be the law of the land or not!――an act which is said to be indispensably necessary to our salvation, and without the passage of which, universal distress and bankruptcy are to pervade the country. Remember, sir, that the honorable gentleman from Georgia, has contended that this charter is no contract. Does it, then, become the representatives of the nation, to leave the nation at the mercy of a corporation? Ought the impending calamities to be left to the hazard of a contingent remedy?

This vagrant power to erect a bank, after having wandered throughout the whole constitution in quest of some congenial spot to fasten upon, has been at length located by the gentleman from Georgia on that provision which authorizes congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money. The sagacious secretary of the treasury, in 1791, pursued the wisest course; he has taken shelter behind general high sounding and imposing terms. He has declared, in the preamble to the act establishing the bank, that it will be very _conducive_ to the successful _conducting_ of the national _finances_; will _tend_ to give _facility_ to the obtaining of loans, and will be _productive_ of considerable advantage to _trade_ and _industry_ in general. No allusion is made to the collection of taxes. What is the nature of this government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implication must be necessary, and obviously flow from the enumerated power with which it is allied. The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death, throughout one of the largest portions of the habitable world――a company which is, in itself, a sovereignty, which has subverted empires and set up new dynasties, and has not only made war, but war against its legitimate sovereign! Under the influence of this power, we have seen arise a South Sea Company, and a Mississippi Company, that distracted and convulsed all Europe, and menaced a total overthrow of all credit and confidence, and universal bankruptcy. Is it to be imagined that a power so vast would have been left by the wisdom of the constitution to doubtful inference? It has been alleged that there are many instances, in the constitution, where powers in their nature incidental, and which would have necessarily been vested along with the principal, are nevertheless expressly enumerated; and the power ‘to make rules and regulations for the government of the land and naval forces,’ which it is said is incidental to the power to raise armies and provide a navy, is given as an example. What does this prove? How extremely cautious the convention were to leave as little as possible to implication. In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the constitution. If, then, you could establish a bank, to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is mockery, worse than usurpation, to establish it for a lawful object, and then to extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said, that the great luminary of day is an accessory, a satellite, to the humblest star that twinkles forth its feeble light in the firmament of heaven!

Suppose the constitution had been silent as to an individual department of this government, could you, under the power to lay and collect taxes, establish a judiciary? I presume not; but if you could derive the power by mere implication, could you vest it with any other authority than to enforce the collection of the revenue? A bank is made for the ostensible purpose of aiding in the collection of the revenue, and whilst it is engaged in this, the most inferior and subordinate of all its functions, it is made to diffuse itself throughout society, and to influence all the great operations of credit, circulation, and commerce. Like the Virginia justice, you tell the man whose turkey had been stolen, that your books of precedent furnish no form for his case, but that you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount, to emit paper, to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, whilst occupied with that, you may do whatever else you please!

What is a corporation, such as the bill contemplates? It is a splendid association of favored individuals, taken from the mass of society, and invested with exemptions and surrounded by immunities and privileges. The honorable gentleman from Massachusetts (Mr. Lloyd) has said, that the original law, establishing the bank, was justly liable to the objection of vesting in that institution an exclusive privilege, the faith of the government being pledged, that no other bank should be authorized during its existence. This objection, he supposes, is obviated by the bill under consideration; but all corporations enjoy exclusive privileges; that is, the corporators have privileges which no others possess; if you create fifty corporations instead of one, you have only fifty privileged bodies instead of one. I contend, that the states have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If congress have the power to erect an artificial body, and say it shall be endowed with the attributes of an individual; if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of state rights, confer upon slaves, infants, and femes covert the ability to contract? And if you have the power to say, that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations. You establish one in the heart of a state, the basis of whose capital is money. You may erect others whose capital shall consist of land, slaves, and personal estates, and thus the whole property within the jurisdiction of a state might be absorbed by these political bodies. The existing bank contends that it is beyond the power of a state to tax it, and if this pretension be well founded, it is in the power of congress, by chartering companies, to dry up all the sources of state revenue. Georgia has undertaken, it is true, to levy a tax on the branch within her jurisdiction, but this law, now under a course of litigation, is considered as invalid. The United States own a great deal of land in the state of Ohio; can this government, for the purpose of creating an ability to purchase it, charter a company? Aliens are forbidden, I believe, in that state, to hold real estate; could you, in order to multiply purchasers, confer upon them the capacity to hold land, in derogation of the local law? I imagine this will be hardly insisted upon; and yet there exists a more obvious connection between the undoubted power, which is possessed by this government, to sell its land, and the means of executing that power by increasing the demand in the market, than there is between this bank and the collection of a tax. This government has the power to levy taxes, to raise armies, provide a navy, make war, regulate commerce, coin money, &c. &c. It would not be difficult to show as intimate a connection between a corporation, established for any purpose whatever, and some one or other of those great powers, as there is between the revenue and the bank of the United States.