negroes, to occupy the fort, and declares his purpose to possess himself of it, in either of the two contingencies, of its being in their hands, or in the hands of the Spaniards. He assumed a right to judge what Spain was bound to do by her treaty, and judged very correctly; but then he also assumed the power, belonging to Congress alone, of determining what should be the effect and consequence of her breach of engagement. General Jackson generally performs what he intimates his intention to do. Accordingly, finding St. Marks yet in the hands of the Spaniards, he seized and occupied it Was ever, I ask, the just confidence of the legislative body, in the assurances of the chief magistrate, more abused? The Spanish commander intimated his willingness that the American army should take post near him, until he could have instructions from his superior officer, and promised to maintain, in the mean time, the most friendly relations. No! St. Marks was a convenient post for the American army, and delay was inadmissible. I have always understood that the Indians but rarely take or defend fortresses, because they are unskilled in the modes of attack and defence. The threat, therefore, on their part, to seize on St. Marks, must have been empty, and would probably have been impossible. At all events, when General Jackson arrived there, no danger any longer threatened the Spaniards, from the miserable fugitive Indians, who fled on all sides upon his approach. And, sir, upon what plea is this violation of orders, and this act of war upon a foreign power, attempted to be justified? Upon the grounds of the conveniency of the depot and the Indian threat. The first I will not seriously examine and expose. If the Spanish character of the fort had been totally merged in the Indian character, it might have been justifiable to seize it. But that was not the fact; and the bare possibility of its being forcibly taken by the Indians could not justify our anticipating their blow. Of all the odious transactions which occurred during the late war between France and England, none was more condemned in Europe and in this country, than her seizure of the fleet of Denmark, at Copenhagen. And I lament to be obliged to notice the analogy which exists in the defences made of the two cases. If my recollection does not deceive me, Bonaparte had passed the Rhine and the Alps, had conquered Italy, the Netherlands, Holland, Hanover, Lubec, and Hamburg, and extended his empire as far as Altona, on the side of Denmark. A few days' march would have carried him through Holstein, over the two Belts, through Funen, and into the island of Zealand. What then was the conduct of England? It was my lot to fall into conversation with an intelligent Englishman on this subject. “We knew (said he) that we were fighting for our existence. It was absolutely necessary that we should preserve the command of the seas. If the fleet of Denmark fell into the enemy's hands, combined with his other fleets, that command

might be rendered doubtful. Denmark had only a nominal independence. She was, in truth, subject to his sway. We said to her, Give us your fleet; it will otherwise be taken W. of by your secret and our open enemy, e will preserve it, and restore it to you whenever the danger shall be over. Denmark refused. Copenhagen was bombarded, gallantly defended, but the fleet was seized.” Everywhere the conduct of England was censured; and the name even of the negotiator who was employed by her, who was subsequently the minister near this government, was scarcely ever, pronounced here without coupling with it an epithet indicating his participation in the disgraceful transaction. And yet we are going to sanction acts of violence, committed by ourselves, which but too much resemble it! What an important difference, too, between the relative condition of England and of this country! She, perhaps, was struggling for her existence. She was combating, single-handed, the most enormous military power that the world has ever known. With whom were we contending? With a few half-starved, half-clothed, wretched Indians, and fugitive slaves. And while carrying on this inglorious war, inglorious as it regards the laurels or renown won in it, we violate neutral rights, which the government had solemnly pledged itself to respect, upon the principle of convenience, or upon the light presumption that, by possibility, a post might be taken by this miserable combination of Indians and slaves. On the 8th of April the general writes from St. Marks that he shall march for the Suwaney river; the destroying of the establishments on which will, in his opinion, bring the war to a close. Accordingly, having effected that object, he writes, on the 20th of April, that he believes he may say that the war is at an end for the present. He repeats the same opinion in his letter to the Secretary of War, written six days after. The war being thus ended, it might have been hoped that no further hostilities would be committed. But on the 23d of May, on his way home, he receives a letter from the commandant of Pensacola, intimating his surprise at the invasion of the Spanish territory, and the acts of hostility performed by the American army, and his determination, if persisted in, to employ force to repel them. Let us pause and examine the proceeding of the governor, so very hostile and affrontive in the view of General Jackson. . Recollect that he was governor of Florida; that he had received no orders from his superiors to allow a passage to the American army; that he had heard of the reduction of St. Marks; and that General Jackson, at the head of his army, was approaching in the direction of Pensacola. He had seen the president's message of the 25th of March, and reminded General Jackson of it, to satisfy him that the American government could not have authorized all those measures. I cannot read the allusion made by the governor to that message without feeling that the charge of insincerity

which it implied had, at least, but too much the appearance of truth in it. Could the governor have done less than write some such letter? We have only to reverse situations, and suppose him to have been an American governor. General Jackson says that when he received that letter he no longer hesitated. No, sir, he did no longer hesitate. He received it on the 23d, he was in Pensacola on the 24th, and immediately after set himself before the fortress of San Carlos de Barancas, which he shortly reduced. “Weni, vidi, vici.” Wonderful energy! *Admirable promptitude! Alas! that it had not been an energy and a promptitude within the pale of the constitution, and according to the orders of the chief magistrate. It is impossible to give any definition of war that would not comprehend these acts. It was open, undisguised, and unauthorized hostility. The honorable gentleman from Massachusetts has endeavored to derive some authority to General Jackson from the message of the president, and the letter of the so of War to Governor Bibb. The message declares that the Spanish authorities are to be respected whereever maintained. What the president means by their being maintained is explained in the orders themselves, by the extreme case being put of the enemy seeking shelter under a Spanish fort. If even in that case he was not to attack, certainly he was not to attack in any case of less strength. The letter to Governor Bibb admits of a similar explanation. When the secretary says, in that letter, that General Jackson is fully empowered to bring the Seminole war to a conclusion, he means that he is so empowered by his orders, which, being now before us, must speak for themselves. It does not appear that General Jackson ever saw that letter, which was dated at this place after the capture of St Marks. I will take a momentary glance at the orders. On the 2d of December, 1817, General Gaines was forbidden to cross the Florida line. Seven days after, the Secretary of War having arrived here, and infused a little more energy into our councils, he was authorized to use a sound discretion in crossing or not. On the 16th, he he was instructed again to consider himself at liberty to cross the line, and pursue the enemy; but, if he took refuge under a Spanish fortress, the fact was to be reported to the Department of War. These orders were transmitted to General Jackson, and constituted, or ought to have constituted, his guide. There was then no justification for the occupation of Pensacola, and the attack on the Barancas, in the message of the President, the letter to Governor Bibb, or in the orders themselves. The gentleman from Massachusetts will pardon me for saying, that he has undertaken what even his talents are not competent to—the maintenance of directly contradictory propositions, that it was right in General Jackson to take Pensacola, and wrong in the President to keep it. The gentleman has made a greater mistake than he supposes Gen

eral Jackson to have done in attacking Pensacola for an Indian town, by attempting the defence both of the President and General Jackson. If it were right in him to seize the place, it is impossible that it should have been right in the President immediately to surrender it. We, sir, are the supporters of the President. We regret that we cannot support General Jackson also. The gentleman's liberality is more comprehensive than ours. I approve with all my heart of the restoration of Pensacola. I think St. Marks ought, perhaps, to have been also restored; but I say this with doubt and diffidence. That the President thought the seizure of the Spanish posts was an act of war, is manifest from his opening message, in which he says that, to have retained them, would have changed our relations with Spain, to do which the power of the executive was incompetent, Congress alone possessing it. The President has, in this instance, deserved well of his country. He has taken the only course which he could have pursued, consistent with the constitution of the land. And I defy the gentleman to make good both his positions, that the general was right in taking, and the President right in giving up, the posts.

Mr. Holmes explained.

The gentleman from Massachusetts is truly unfortunate; fact or principle is always against him. The Spanish posts were not in the possession of the enemy. One old Indian only was found in the Barancas, none in Pensacola, none in St. Marks. There was not even the color of a threat of Indian occupation as it regards Pensacola and the Barancas. Pensacola was to be restored unconditionally, and might, therefore, immediately have come into the possession of the Indians, if they had the power and the will to take it. The gentleman is in a dilemma from which there is no escape. He gave up General Jackson when he supported the President, and gave up the President when he supported General Jackson. I rejoice to have seen the President manifesting, by the restoration of Pensacola, his devotedness to the constitution. When the whole country was ringing with plaudits for its capture, I said, and I said alone, in the limited circle in which I moved, that the President must surrender it; that he could not hold it. It is not my intention to inquire, whether the army was or was not constitutionally marched into Florida. It is not a clear question, and I am inclined to think that the express authority of Congress ought to have been asked. The gentleman from Massachusetts will allow me to refer to a part of the correspondence at Ghent different from that which he has quoted. He will find the condition of the Indians there accurately defined. And it is widely variant from the gentleman's ideas on this subject. The Indians, inhabiting the United States, according to the statement of the American commissioners at Ghent, have a qualified sovereignty only, the supreme sovereignty residing in the Government of the United States. They live under their own laws and customs, may inhabit and hunt their lands; but acknowledge the protection of the United States, and have no right to sell their lands but to the Government of the United States. Foreign powers or foreign subjects have no right to maintain any intercourse with them, without our permission. They are not, therefore, independent nations, as the gentleman supposes. Maintaining the relation described with them, we must allow a similar relation to exist between Spain and the Indians residing within her dominions. She must be, therefore, regarded as the sovereign of Florida, and we are, accordingly, treating with her for the purchase of it. In strictness, then, we ought first to have demanded of her to restrain the Indians, and, that failing, we should have demanded a right of passage for our army. But, if the President had the power to march an army into Florida, without consulting Spain, and without the authority of Congress, he had no power to authorize any act of hostility against her. If the gentleman had even succeeded in showing that an authority was conveyed by the executive to General Jackson to take the Spanish posts, he would only have established that unconstitutional orders had been given, and thereby transferred the disapprobation from the military officer to the executive. But no such orders were, in truth, given. The President acted in conformity to the constitution, when he forbade the attack of a Spanish fort, and when, in the same spirit, he surrendered the posts themselves. I will not trespass much longer upon the time of the committee; but I trust I shall be indulged with some few reflections upon the danger of permitting the conduct on which it has been my painful duty to animadvert, to pass without the solemn expression of the disapprobation of this House. Recall to your recollection the free nations which have gone before us. Where are they now?

“Gone glimmering through the dream of things that were, A school-boy's tale, the wonder of an hour.”

And how have they lost their liberties? If we could transport ourselves back to the ages when Greece and Rome flourished in their greatest prosperity, and imingling in the throng, should ask a Grecian if he did not fear that some daring military chieftain, covered with glory, some Philip or Alexander, would one day overthrow the liberties of his country, the confident and indignant Grecian would exclaim, No! no! we have nothing to fear from our heroes: our liberties will be eternal. If a Roman citizen had been asked, if he did not fear that the conqueror of Gaul might establish a throne upon the ruins of public liberty, he would have instantly repelled the unjust insinuation. Yet Greece fell; Caesar passed the Rubicon, and the patriotic arm even of Brutus could

not preserve the liberties of his devoted country ! The celebrated Madame de Staël, in her last and perhaps her best work, has said, that in the very year, almost the very month, when the president of the directory declared that monarchy would never more show its frightful head in France, Bonaparte, with his grenadiers, entered the palace of St. Cloud, and dispersing, with the bayonet, the deputies of the people, deliberating on the affairs of the State, laid the foundation of that vast fabric of despotism which overshadowed all Europe. I hope not to be misunderstood; I am far from intimating that General Jackson cherishes any designs inimical to the liberties of the country. I believe his intentions to be pure and patriotic. I thank God that he would not, but I thank him still more that he could not if he would, overturn the liberties of the Republic. But precedents, if bad, are fraught with the most dangerous consequences. Man has been described, by some of those who have treated of his nature, as a bundle of habits. The definition is much truer when applied to governments. Precedents are their habits. There is one important difference between the formation of habits by an individual and by governments. He contracts only after frequent repetition. A single instance fixes the habit and determines the direction of governments. Against the alarming doctrine of unlimited discretion in our military commanders when applied even to prisoners of war, I must enter my protest. It begins upon them; it will end on us. I hope our happy form of government is to be perpetual. But, if it is to be preserved, it must be by the practice of virtue, by justice, by moderation, by magnanimity, by greatness of soul, by keeping a watchful and steady eye on the executive; and, above all, by holding to a strict accountability the military branch of the public force. We are fighting a great moral battle, for the benefit not only of our country, but of all mankind. The eyes of the whole world are in fixed attention upon us. One, and the largest portion of it, is gazing with contempt, with jealousy, and with envy; the other portion, with hope, with confidence, and with affection. Everywhere the black cloud of legitimacy is suspended over the world, save only one bright spot, which breaks out from the political hemisphere of the west, to enlighten, and animate, and gladden the human heart. Obscure that by the downfall of liberty here, and all mankind are enshrouded in a pall of universal darkness. To you, Mr. Chairman, belongs the high privilege of transmitting, unimpaired, to posterity, the fair character and liberty of our country. Do you expect to execute this high trust, by trampling or suffering to be trampled down, law, justice, the constitution, and the rights of the peopleft by exhibiting examples of inhumanity, aisl cruelty, and ambition ? When the minions of despotism heard, in Europe, of the seizure of Pensacola, how did they chuckle, and chide the admirers of our institutions, tauntingly pointing to the demonstration of a spirit of injustice and aggrandizement made by our country, in the midst of an amicable negotiation Behold, said they, the conduct of those who are constantly reproaching kings! You saw how those admirers were astounded and hung their heads. You saw, too, when that illustrious man, who presides over us, adopted his pacific, moderate, and just course, how they once more lifted up their heads with exultation and delight beaming in their countenances. And you saw how those minions themselves were finally compelled to unite in the general praises bestowed upon our government. Beware how you forfeit this exalted character. Beware how you give a fatal sanction, in this infant period of our republic, scarcely yet two-score years old, to miliinsubordination. Remember that Greece had her Alexander, Rome her Caesar, England her Cromwell, France her Bonaparte, and that if we would escape the rock on which they split, we must avoid their errors. How different has been the treatment of General Jackson and that modest, but heroic young man, a native of one of the smallest States in the Union, who achieved for his country, on Lake Erie, one of the most glorious victories of the late war. In a moment of passion, he forgot himself, and offered an act of violence which was repented of as soon as perpetrated. He was tried, and suffered the judgment to be pronounced by his peers. Pubic justice was thought not even then to be satisfied. The press and Congress took up the subject. My honorable friend from Virginia,

Mr. Johnson, the faithful and consistent sentinel of the law and of the constitution, disapproved in that instance, as he does in this, and moved an inquiry. The public mind remained agitated and unappeased, until the recent atonement so honorably made by the gallant commodore. And is there to be a distinction between the officers of the two branches of the public service? Are former services, however eminent, to preclude even inquiry into recent misconduct? Is there to be no limit, no prudential bounds to the national gratitude? I am not disposed to censure the President for not ordering a court of inquiry, or a general court-martial. Perhaps, impelled by a sense of gratitude, he determined, by anticipation, to extend to the general that pardon which he had the undoubted right to grant after sentence. Let us not shrink from our duty. Let us assert our constitutional powers, and vindicate the instrument from military violation. I hope gentleman will deliberately survey the awful isthmus on which we stand. They may bear down all opposition; they may even vote the general the public thanks; they may carry him triumphantly through this House. But, if they do, in my humble judgment, it will be a triumph of the principle of insubordination, a triumph of the military over the civil authority, a triumph over the powers of this House, a triumph over the constitution of the land. And I pray most devoutly to Heaven, that it may not prove, in its ultimate effects and consequences, a triumph over the liberties of the



Mr. Clay delivered this speech, in the House of Representatives of the United States, on the sixteenth of January, 1824; on “a bill authorizing the President of the United States to cause certain surveys and estimates to be made on the sulject of roads and canals:”—

MR. CHAIRMAN: I cannot enter on the discussion of the subject before us, without first asking leave to express my thanks for the kindness of the committee, in so far accommodating me as to agree, unanimously, to adjourn its sitting to the present time, in order to afford me the opportunity of exhibiting my views; which, however, I fear I shall do very unacceptably. As a requital for this kindness, I will endeavor, as far as is practicable, to abbreviate what I have to present to your consideration. Yet, on a question of this extent and moment, there are so many topics which demand a deliberate examination, that, from the nature of ise, it will be impossible, I am afraid, to

reduce the argument to any thing that the comemittee will consider a reasonable compass. It is known to all who hear me, that there has now existed for several years a difference of opinion between the executive and legislative branches of this government, as to the nature and extent of certain powers conferred upon it by the constitution. Two successive Presidents have returned to Congress bills which had previously passed both Houses of that body, with a communication of the opinion, that Congress, under the constitution, possessed no power to enact such laws. High respect, personal and official, must be felt by all, as it is due, to those distinguished officers, and to their opinions, thus solemnly announced; and the most profound consideration belongs to our present chief magistrate, who has favored this House with a written argument, of great length and labor, consisting of not less than sixty or seventy pages, in support of his exposition Öf the constitution. From the magnitude of the interests involved in the question, all will readily concur

that, if the power is granted, and does really exist, it ought to be vindicated, upheld and maintained, that the country may derive the great benefits which may flow from its prudent exercise. If it has not been communicated to Congress, then all claim to it should be, at once, surrendered. It is a circumstance of peculiar regret to me, that one more competent than myself had not risen to support the course which the legislative department has heretofore felt itself bound to pursue on this great question. Of all the trusts which are created by human agency, that is the highest, most solemn, and most responsible, which involves the exercise of political power. ‘Exerted when it has not been intrusted, the public functionary is guilty of usurpation. And his infidelity to the F. good is not, perhaps, less culpable, when e neglects or refuses to exercise a power which has been fairly conveyed, to promote the public rosperity. If the power, which he thus forars to exercise, can only be exerted by him— if no other public functionary can employ it, and the public good requires its exercise, his treachery is greatly aggravated. It is only in those cases where the object of the investment of power is the personal ease or aggrandizement of the public agent, that his forbearance to use it is praiseworthy, gracious, or magnanimous. I was extremely happy to find, that, on many of the points of the argument of the honorable gentleman from Virginia, Mr. Barbour, there is entire concurrence between us, widely as we differ in our ultimate conclusions. On this occasion (as on all others on which that gentleman obliges the House with an expression of his opinions), he displayed great ability and ingenuity; and, as well from the matter as from the respectful manner of his argument, it is deserving of the most thorough consideration. I am compesled to differ from that gentleman at the very threshold. He commenced by laying down as a general principle, that, in the distribution of powers among our federal and State governments, those which are of a municipal character are to be considered as appertaining to the State governments, and those which relate to external affairs, to the general government. If I may be allowed to throw the argument of the gentleman into the form of a syllogism (a shape which I presume would be quite agreeable to him), it amounts to this: Inunicipal powers belong exclusively to the State governments; but the power to make internal improvements is municipal; therefore it belongs to the State governments alone. I deny both the premises and the conclusion. If the gentleman had affirmed that certain municipal powers, and the great mass of them, belong to the State governments, his proposition would have been incontrovertible. But if he had so qualified it, it would not have assisted the gentleman at all in his conclusion. But surely the power of taxation, the power to regulate the value of coin, the power to establish a uniform standard of weights and measures, to establish

post offices and post roads, to regulate commerce among the several States, that in relation to the judiciary, besides many other powers indisputably belonging to the federal government, are strictly municipal. If, as I understood the gentleman in the course of the subsequent part of his argument to admit, some municipal powers belong to the one system, and some to the other, we shall, derive very little aid from the gentleman's principle, in making the discrimination between the two. The question must ever remain open—whether any given power, and, of course, that in question, is or is not delegated to this government, or retained by the States? The conclusion of the gentleman is, that all internal improvements belong to the State governments: that they are of a limited and local character, and are not comprehended within the scope of the federal powers, which relate to external or general objects. That many, perhaps most internal improvements, partake of the character described by the gentleman, I shall not deny. But it s no less true that there are others, emphatically national, which neither the policy, nor the power, nor the interests, of any State will induce it to accomplish, and which can only be effected by the application of the resources of the nation. The improvement of the navigation of the Mississippi furnishes a striking example. This is undeniably a great and important object. The report of a highly .#. and intelligent officer of the engineer corps (which I hope will be soon taken up and acted upon) has shown that the cost of any practicable improvement in the navigation of that river, in the present state of the inhabitants of its banks, is a mere trifle in comparison to the great benefits which would accrue from it. I believe that about double the amount of the loss of a single steamboat and cargo (the Tennessee) would effect the whole improvement in the navigation of that river, which ought to be at this time attempted. In this great object twelve States and two territories are, in different degrees, interested. The power to effect the improvement of that river is surely not municipal, in the sense in which the gentleman used the term. If it were, to which of the twelve States and two territories concerned does it belong? It is a great object, which can only be effected by a confederacy. And here is existing that confederacy, and no other can lawfully exist: for the constitution prohibits the States, immediately interested, from entering into any treaty or compact with each other. Other examples might be given to show, that, if even the power existed, the inclination to exert it would not be felt, to effectuate certain improvements eminently calculated to promote the prosperity of the union. Neither of the three States, nor all of them united, through which the Cumberland road passes, would ever have erected that road. Two of them would have thrown in every impediment to its completion in their power. Federative in its char

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