Life of Henry Clay/16 French Difficulties — Indians — Patronage

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When the second session of the twenty-third Congress opened, in December, 1834, the United States found themselves in danger of a war with France. It was a curious entanglement. The United States had many and heavy claims against France for damages on account of the depredations committed upon American shipping by the French during the Napoleonic wars. Ever since 1815 these claims had been the subject of fruitless negotiation. In 1829 President Jackson caused them to be pressed with vigor, and in his first annual message he said that, if they were not satisfied, they would "continue to furnish a subject of unpleasant discussion and possible collision." The French government, Charles X. still being king, considered this "menacing" language, and, as such, a sufficient reason for doing nothing. But Louis Philippe, seated on the French throne by the Revolution of 1830, chose not to remember the menace; and on July 4, 1831, a treaty was concluded in Paris, by which France promised to pay the United States $5,000,000 in six installments, to begin one year after the ratification of the treaty, while the United States were to make certain reductions in the duties on French wines. Congress promptly passed a law accordingly. The treaty was ratified on February 2, 1832: the first French payment was therefore due on February 2, 1833. A draft was drawn upon the French government, and presented to the French Minister of Finance at Paris. But payment was refused on the ground that the French Chambers had made no appropriation for that purpose. There was at the time no American Minister at Paris. Edward Livingston, whom we have met as Secretary of State, vacating that office for McLane, was sent, with strong instructions, to fill that position. King Louis Philippe promised to do his best with the Chambers, but the appropriation failed again. The French king is said then to have confidentially intimated to Livingston that an earnest passage in the President's next message might serve to induce the French Chambers to give attention to the subject. Livingston reported something like this to his government. For earnest passages Jackson was the man. He put a paragraph into his annual message of December, 1834, in which, after recapitulating the whole story, he bluntly recommended that "a law be passed authorizing reprisals upon French property, in case provision shall not be made for the payment of the debt at the approaching session of the French Chambers."

That was undoubtedly more earnestness than King Louis Philippe had meant to suggest. What Jackson asked of Congress fell little short of a declaration of war. When the message and the report of the diplomatic correspondence, published by the State Department, became known in Paris, the French press of all parties cried out against it as a wanton insult offered to the French nation; and the government, finding itself obliged to yield to the clamor, resolved to recall the French Minister from Washington, and to tender Livingston his passports. It was a thoroughly Jacksonian situation.

There being neither telegraphs nor fast steamers in those days, the effect produced by Jackson's message in France, and the recall of the French Minister, could not become known in Washington until late in February, 1835. But statesmen who had some knowledge of the manner in which governments speak of one another easily foresaw what impression President Jackson's spirited language would make. They foresaw, also, that the demonstrations of resentment excited in France by the President's message would be apt to be as offensive to the American people as the President's message had been to the French, and that then, both governments having assumed positions from which they could not honorably withdraw, the two countries might drift into war in spite of their inmost wish to remain at peace. It was therefore important that something be done to keep the possibility of friendly negotiation open, before the news of the reception in France of the President's message should arrive in the United States. This task was undertaken by Clay. He knew well how dangerous it would be to give to a man of Jackson's hot temper the power to make reprisals upon French property; and he felt, too, that it would be a shame and disgrace to go to war with a friendly nation upon a mere question of money, until the last resources of peaceable diplomacy should have been exhausted. He therefore took the matter promptly in hand.

That part of the President's message which related to the French business was referred to the Senate Committee on Foreign Relations, of which Clay was chairman. On January 6, 1835, he made a report on the subject, which he himself read to the Senate, and which had the rare fortune to call forth the applause of all parties. He gave a lucid review of the history of the case, and with dignified emphasis asserted the right of the United States to indemnity. He affirmed that, in their determination to protect the rights of the United States, the President, and the opposition, and the whole American people, stood inseparably together. He then pointed out the friendly disposition of Louis Philippe's government; the difficulties it had to contend with; the misapprehensions which in the course of the negotiation had arisen between the two governments, creating unnecessary irritation. He then explained President Jackson's position, how the President did not insist upon reprisals as the only remedy; how he suggested them only as an alternative, if Congress did not choose to wait longer for favorable action on the part of the French; how he did not look upon reprisals under such circumstances as absolutely a measure of hostility, and expressly disclaimed his recommendation to have been intended as a menace. On the other hand, Clay admitted that it might easily be misunderstood as a menace, and that a resort to reprisals was apt to be regarded and resented as an act of war. It behooved the government of the United States not to anticipate a final breach by France of her solemn engagements, and, while firmly standing by our rights as set forth by the President, to treat her with confidence in her honor and good faith.

This was the drift of Clay's report. He also offered a resolution declaring it "inexpedient, at this time, to pass any law vesting in the President authority for making reprisals upon French property," etc. This resolution, modified, with Clay's consent, to spare Jackson's feelings, so as to read: "that it is inexpedient at present to adopt any legislative measures in regard to the state of affairs between the United States and France," was then adopted by a unanimous vote.

Thus Clay's point was gained. The existing irritation was soothed, and Jackson did not receive the means to force the country into a war with France whenever his temper might run away with his judgment. The sequel of the story is interesting. The French Chambers were so far pacified that in April they passed an appropriation for the three installments then due — not to be paid, however, until after the French government should have received "satisfactory explanations" with regard to President Jackson's message of December, 1834. Jackson understood this to mean something like a demand for an apology, and an apology he would not give. He said so in his annual message of 1835, declaring however, at the same time, that he had never intended any "menace." The chargé d'affaires, left behind by Livingston, was instructed to make a formal demand for the money without the apology. Payment was refused. Both governments called home their diplomatic representatives. Jackson, in a special message in January, 1836, recommended that Congress pass a law that French ships and goods be excluded from American ports. Things looked more threatening than ever. Then Great Britain interposed with her good offices, which were accepted by both parties. The French government was induced to declare that Jackson's message, in which he had incidentally said that no menace had been intended, was a sufficient explanation: the money was paid and the trouble was over. It must be added that in popular estimation General Jackson had "beaten the French," and he was in the eyes of the masses a greater hero than ever, — not unnaturally so; for his style of diplomacy, no doubt, convinced all Europe that this Republic could not safely be trifled with. But it was largely due to Clay's skillful interposition that the French business did not take a warlike turn at the start, and that the United States carried their point, and raised their standing among the nations of the world, without firing a gun.

Returning to the second session of the twenty-third Congress, we find Clay advocating a just and generous treatment of the Indians, in a manner worthy of notice, because it proved how a man who had a low opinion of the Indian character, and believed the Indian race doomed to decay and extinction, still might recognize his duty to protect them in their rights. When Clay was Secretary of State under John Quincy Adams, the question of incorporating the Indians in the general body of citizenship happened to be discussed at a cabinet meeting, when Clay, according to Adams's Diary, expressed these opinions: that it was impossible to civilize Indians; it was not in their nature; he believed they were destined to extinction; and, although he would never use or countenance inhumanity toward them, he did not think them, as a race, worth preserving.

It is scarcely possible to pronounce upon the Indians a more unfavorable judgment. We hear in it rather the voice of the frontiersman than of the philanthropist. But when the rights of the Indian were attacked, Clay vigorously entered his plea for justice.

This was the occasion. From some of the Cherokees in Georgia, who had attained a respectable degree of civilization, and then were driven away by the greed of the white man from their lands and churches and schools, Clay received a memorial praying Congress to aid them in emigrating from Georgia to the Indian Territory. Clay, in presenting the memorial to the Senate, told in burning words the story of the wrongs the Cherokees had to suffer, and then uttered these sentiments: —

"Shall I be told that the condition of the African slave is worse? No, sir, it is not worse. The interest of the master makes it at once his duty and his inclination to provide for the comfort and the health of his slave. But who, what human being, stands in the relation of master, or in any other relation which makes him interested in the preservation and protection of the poor Indian thus degraded and miserable? It is said that annihilation is the destiny of the Indian race. Perhaps it is, judging from the past. But shall we therefore hasten it? Death is the irreversible decree pronounced against the human race. Shall we accelerate its approach because it is inevitable? No, sir. Let us treat with the utmost kindness and the most perfect justice the aborigines whom Providence has committed to our guardianship. Let us confer upon them, if we can, the inestimable blessings of Christianity and civilization; and then, if they must sink beneath the progressive wave, we are free from all reproach, and stand acquitted in the sight of God and man."

With such remarks he introduced resolutions contemplating further provision by law to enable Indian tribes to defend and maintain in the courts of the United States their rights to lands secured to them by treaty, to set apart a district west of the Mississippi for Cherokees disposed to emigrate there, and to secure to them and their descendants in perpetuity the peaceful and undisturbed enjoyment thereof. His was the correct doctrine in regard to the Indians: let them have justice; and, if they cannot be made as civilized and useful citizens as white people, let them be made as civilized and useful as it is possible to make them.

During the same session an attempt was made to arrest by law the flagrant abuses which President Jackson's arbitrary course in making removals and appointments had spread in the machinery of the general government and on the field of national politics. The statesmen of the time felt keenly the growing danger. They were alarmed at the demoralization which the vicious doctrine, that public office should be treated as the spoil of party victory, was infusing into all the channels of political life. They looked for a remedy. Arbitrary removals for partisan reasons, scarcely ever known before, never thought possible in the extent to which Jackson carried them, were the first scandal, in his treatment of the public service, which startled thoughtful men. It was natural, therefore, that a limitation of the removing power should have been the first remedy thought of. On February 9, 1835, Calhoun made a report from a committee appointed to inquire into the extent of the executive patronage, and kindred subjects. The report portrayed the existing abuses in a startling picture, and recommended the passage of a bill repealing the act of 1820 limiting to four years the tenure of certain offices, and providing further "that, in all nominations made by the President to the Senate to fill vacancies occasioned by removal from office, the facts of the removal shall be stated to the Senate, with a statement of the reasons for such removal."

The debate, one of the most instructive on that subject in the history of Congress, was mainly carried on by Calhoun, Clay, Webster, and Ewing on the side of the report. They were all united in the opinion that the Constitution did not give to the President the absolute power of removal. The contrary construction put upon the Constitution by the first Congress was by no means overlooked by them. But they thought that the strength of argument had been then, as it was now, altogether on the other side; that it was impossible to read the debate in the first Congress "without being impressed with the conviction that the just confidence reposed in the Father of his Country, then at the head of the government, had great, if not decisive, influence in establishing" that construction of the Constitution. They held "that the power of appointment naturally and necessarily included the power of removal," both to be exercised by the President by and with the advice and consent of the Senate. They admitted, however, that the construction given to the Constitution in 1789 had become established by practice, and recognized by subsequent laws. But they insisted, as Webster expressed it, that Congress clearly had the power "of regulating the condition, duration, qualification, and tenure of office in all cases where the Constitution has made no express provision on the subject;" and that, therefore, it was "competent for Congress to declare by law, as one qualification of office, that the incumbent shall remain in place till the President shall remove him for reasons to be stated to the Senate." This last proposition it is very difficult to controvert.

Clay went beyond the recommendation of the report. A year before, in March, 1834, he had proposed a series of resolutions, the gist of which he now moved by way of amendment, providing that in all instances of appointment to office by the President, with the consent of the Senate, the power of removal should be exercised only in concurrence with the Senate; but that during the vacation of the Senate, the President should have the power to suspend any such officer, with the duty to communicate his reasons for the suspension to the Senate during the first month of its succeeding session, when, if the Senate concurred with him, the officer should be removed, and, if the Senate did not concur, the officer should be reinstated. Clay was induced not to urge his amendment, and he dropped it. But it was destined to come to life again more than thirty years later, when, during President Johnson's administration, Congress embodied its substance in the famous tenure-of-office act.

Clay supported with some pointed arguments the proposition of the committee, that it should be the duty of the President to communicate to the Senate the reasons for the removals made. "It has been truly said," he remarked, "that the office was not made for the incumbent. Nor was it created for the incumbent of another office. In both and in all cases, public offices are created for the public; and the people have a right to know why and wherefore one of their servants dismisses another."

It was then, as it is now, argued that the absolute power of removal must be vested in the Executive, because summary proceedings were sometimes required for the good of the service, and also because the responsibility for removals must definitely rest upon somebody. Concerning this part of the subject, as it had been discussed by Madison in 1789, Clay said: —

"He [Madison] says, 'The danger, then, merely 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 an abuse of his power?' What motives! The pure heart of a Washington could have had none; the virtuous head of a Madison could conceive none; but let him ask General Jackson, and he will tell him of motives enough. He will tell him that he wishes his administration to be a unit; that he desires only one will to prevail in the executive branch of the government; that he cannot confide in men who opposed his election; that he wants places to reward those who supported it; that the spoils belong to the victors. And what do you suppose are the securities against the abuse of this power on which Mr. Madison relied? 'In the first place,' he says, 'he will be impeachable by the House before the Senate for such an act of maladministration,' and so forth. Impeachment! It is a scarecrow. Impeach the President for dismissing a receiver or register of the land office, or a collector of the customs!"

Clay went on to show that the other "security" mentioned by Madison, "that the President, after displacing the meritorious officer, could not appoint another person without the concurrence of the Senate," could not at all be depended upon to prevent the abuse of the removing power by the Executive, because the President alone would exercise the power of nomination, and weary the Senate finally into accepting somebody selected by the Executive.

Clay apparently did not foresee what part the Senate itself would play in the development of "spoils" politics. At that period, indeed, the procuring of offices, the manipulation of the patronage, had not yet become an absorbing occupation among legislators. It was still thought that the legitimate business of statesmanship concerned other things. The "courtesy of the Senate," which, in acting upon nominations made by the President, puts personal considerations above all others and keeps in view the solidarity of senatorial advantages, had not yet risen to the dignity of a system. The danger that "tenure of office laws" might be come sources of corrupt practices in the Senate did not yet appear. The principal agency of evil was, therefore, still seen in the Executive. Nor was this at all illogical. "Spoils" politics had indeed been carried to an alarming extent in some states before. The greed of office-seekers had been many a time complained of in Washington. But the wisdom and patriotic firmness of the men in the executive chair of the national government had successfully restrained the dangerous tendency down to the close of John Quincy Adams's administration. It was then, with Jackson's advent to power, the executive hand that opened the flood gates, against the judgment, and even against the indignant protest, of the first order of statesmen in Congress. Nothing could have been more natural, therefore, than that the Executive should have been held wholly responsible for the mischief, and that in restraints to be put upon the Executive the remedy should have been sought.

It is true, the aspect of the matter has since changed somewhat. The offices of the government having once been declared to be the "spoils" of the victorious party, Senators and Representatives in Congress seized upon the opportunities thus opened to them. They learned how to serve themselves by apparently serving their constituents. Then members of Congress found themselves set upon by a pressure of demand from partisan office-seekers, and Presidents from members of Congress, which demand constantly grew in overbearing and tyrannical force as it gradually acquired the sanction of established custom. That is the "spoils system" as we know it in our days. We therefore no longer see the agency of the evil in the Executive alone.

But even now no remedy has been devised the efficacy of which does not depend upon the action of the Executive. No reform law has ever been suggested — unless it be one forbidding members of Congress to meddle with appointments to office — which has not for its object to restrain the Executive in making arbitrary appointments and removals, or to serve the Executive as a protecting bulwark against the pressure of the spoils politicians. Neither is the prevention of arbitrary removals less important now than it was then; for the facility of making arbitrary partisan removals will always encourage the making of appointments for mere personal or partisan ends. The statesmen of the twenty-third Congress were, therefore, not only right in their day, but they would be equally right in our day, in proposing a measure to prevent the arbitrary use of the removing and appointing power. Nor was the measure they advocated, although mild, unwisely chosen.

Clay readily admitted the "necessity of some more summary and less expensive and less dilatory mode of dismissing delinquents from subordinate offices than that of impeachment, which, strictly speaking, was perhaps the only one in the contemplation of the framers of the Constitution." Neither would the measure he recommended curtail the discretion of the Executive in this respect. He said: —

"By the usage of the government, — not, I think, by the Constitution, — the President possesses the power to dismiss those who are unworthy of holding these offices. By no practice or usage, but that which he himself has created, has he the power to dismiss meritorious officers only because they differ from him in politics. The principal object of the bill is to require the President, in cases of dismission, to communicate the reasons which have induced him to dismiss the officer; in other words, to make an arbitrary and despotic power a responsible power. It is not to be supposed that, if the President is bound publicly to state his reasons, he would act from passion or caprice, or without any reason. He would be ashamed to avow that he discharged the officer because he opposed his election."

Clay might have said more: a President, or any officer intrusted with the power of removal, would find in such an obligation a most powerful protection against the urgency of those demanding removals, the reasons for which cannot honorably be avowed.

This proposition was vigorously supported by the statesmen whose names stand foremost in the political history of that period; and it is a remarkable fact that the repeal of the four years term act received in the Senate a vote of 31 to 16, and that among the majority we find the celebrities of both parties, such as Bell, Benton, Calhoun, Clay, Clayton, Ewing, Frelinghuysen, Mangum, Poindexter, Preston, Southard, Tyler, Webster, and White; while among those sustaining the four years act there were, of well-known names, only Buchanan, Silas Wright, and King of Alabama. Even such friends of General Jackson as Benton and White voted for the repeal. But the reformatory effort did not go beyond the Senate, and was therefore fruitless.