CLAY, HENRY (1777–1852)

Henry Clay, distinguished politician and legislator, was a product of the Jeffersonian Republicanism that took possession of the Trans-Appalachian West, fought a second war against Great Britain, and was nationalized in the process. Born in Hanover County, Virginia, young Clay clerked for Chancellor george wythe and read law in Richmond before emigrating to Kentucky in his twentieth year. Settling in the rising metropolis of Lexington, Clay was promptly admitted to the bar, and by virtue of extraordinary natural talent, aided by the fortune of marriage into a prominent mercantile family, he soon became a leading member of the Bluegrass lawyer-aristocracy.

The chaos of land titles in Kentucky—a legacy of the state's Virginia origins—made it a paradise for lawyers. Clay mastered this abstruse branch of jurisprudence but earned his reputation as a trial lawyer in capital cases, in which he was said never to have lost a client. He rode the circuit of the county courts, acquiring a character for high spirits and camaraderie; he practiced before the court of appeals and also before the United States district court at Frankfort. When he first went to Congress in 1806, Clay was admitted to the bar of the Supreme Court. Occasionally in years to come he argued important constitutional cases before the court. He was chief counsel for the defendant in osborn v. bank of the united states (1824), for instance, in which the Court struck down a prohibitive state tax on branches of the bank. At about the same time he conducted Kentucky's defense of its Occupying Claimants Law, enacted years earlier in order to settle thousands of disputed land titles. Here Clay was unsuccessful, as the Court, in green v. biddle (1823), found the Kentucky law in violation of the contract clause. Justice joseph story remarked after hearing Clay in this case that, if he chose, Clay might achieve "great eminence" at the bar. This interesting judgment would never be tested, however, for Clay sought eminence in politics rather than law.

Clay entered politics in 1798 as a Jeffersonian Republican protesting the alien and sedition acts and seeking liberal reform of the state constitution. Elected to the legislature in 1803, he became chief spokesman and protector of the Lexington-centered "court party." He was also very popular, rising rapidly to the speakership of the lower house. In 1806 he was sent to the United States Senate to complete three months of an unexpired term; this experience was repeated, upon the resignation of another incumbent, in 1810. Clay distinguished himself as a bold patriot and orator, as an advocate of federal internal improvements and encouragement of domestic manufactures, both of great interest to Kentucky, and as the leading opponent of recharter of the national bank on strict Jeffersonian grounds. He then sought and won election to the Twelfth Congress. Upon its meeting in November 1811, he achieved recognition as chief of the "war hawks" who, though a small minority, took command of the House and elected Clay speaker. Whether or not the war hawks caused, in some significant degree, the War of 1812 is a matter in dispute among historians; but there is no doubt that they brought fresh westerly winds of nationalism into Congress and that Clay, as speaker, mobilized congressional action behind the james madison administration's prosecution of the war. Clay transformed this constitutional office, the speakership, from that of an impartial moderator into one of political leadership. Five times he would be reelected speaker, always virtually without opposition; and when he finally retired from the House there was no one to fill his shoes.

After the Peace of Ghent, which he had helped negotiate as an American commissioner, Clay supported President Madison's national Republican platform with its broad constitutional principles. This support required an about-face on the constitutionality of a national bank. Clay candidly chalked up his error to experience, saying that the financial exigencies of the war had shown the necessity of a national bank; he now agreed with Madison on the need for a central institution to secure a stable and uniform currency. Henceforth, certainly, Clay's principal significance with respect to the Constitution lay in the affirmation of congressional powers.

The protective tariff was the core of the maturing national system of political economy that Clay named "the american system." The country ought not any longer, he argued, look abroad for wealth, but should turn inward to the development of its own resources. Manufactures would rise and flourish behind the tariff wall, consuming the growing surplus of American agriculture; and a balanced, sectionally based but mutually supportive, economy of agriculture, commerce, and manufactures would be the result. Because the system premised a positive role for the national government in economic development, it carried immense implications for the Constitution. When the protective tariff was first attacked on constitutional grounds in 1824, Clay rejected the narrow view that limited the taxing power to raising revenue and continued the liberal interpretation of the commerce clause that began with Jefferson's embargo. The infrastructure of the "home market" would be provided by a national system of internal improvements. Madison, in his surprising veto of the Bonus Bill in 1817, interposed the constitutional objection that neither the funding nor the building of roads and canals was among the enumerated powers. When Madison's successor, james monroe, persisted in this view, Clay mounted a campaign to overturn it. He appealed to the Jeffersonian precedent of the National (Cumberland) Road; he appealed to the war powers (transportation as an element of national defense), to the power of Congress to establish post roads, and, above all, to the commerce power. To the old fears of a runaway Constitution Clay opposed his trust in democratic elections and the balance of interests to keep order. Monroe finally conceded the unlimited power of Congress to appropriate money for internal improvements, though not to build or operate them. Clay protested that the concession was of greater scope than the principle he had advocated. But he took satisfaction in the result, most immediately in the General Survey Act of 1824.

Clay's coalition with john quincy adams in 1825, in which he secured the New Englander's election to the presidency and accepted appointment as his secretary of state, contributed to a growing sectional and partisan opposition to the American System and the constitutional doctrines that supported it. South Carolina's nullification of the protective tariff in 1832 provoked a crisis that Clay, now in the Senate, helped to resolve with his Compromise Tariff Act. Under it protective duties would be gradually lifted until in 1842 they would be levied for revenue only. Without surrendering any constitutional principle, Clay nevertheless seemed to surrender the policy of protectionism. Some politicians said he courted southern votes in his quest for the presidency. As the National Republican candidate against President andrew jackson in the recent election, he had been badly defeated, winning nothing in the South, and he may have seen in this crisis an opportunity for a useful change of political direction. But Clay insisted he acted, first, to save the Union from the disaster of nullification, which was compounded by Jackson's threatened vengeance, and second, to save what he could of the American System. A high protective tariff could no longer be sustained in any event. The national debt was about to be paid off; the treasury faced an embarrassing surplus unless the revenue was drastically reduced. Clay sought to offset the impact of the surplus on the tariff by diverting the soaring revenue of public land sales to the states. Although Congress passed Clay's Distribution Bill in 1833, Jackson vetoed it.

This veto, with many others, above all jackson ' sveto of the bank bill, fueled Clay's assault on the alleged executive usurpations and monarchical designs of the President. The senator proposed to curtail the powers of the presidency. The abuse of the veto power should be corrected by a constitutional amendment allowing override by a majority of both houses. The despotic potential of the office, which Jackson was the first to disclose, should be curbed further by an amendment limiting the president to a single term, perhaps of six years. Clay also rejected the 1789 precedent on the removal power, arguing that the power of removal in the President effectively negated the Senate's agency in appointment. Removal, like appointment, should be a joint responsibility. The Whig Party, under Clay's leadership, consistently advocated these measures. None was ever enacted. Clay continued the campaign even after the Whigs came to power in 1841, assailing President John Tyler as he had earlier assailed Jackson.

Although Clay usually supported national authority in the debates of his time, he became increasingly cautious and protective of the Constitution under the threats posed, first, by reckless Jacksonian Democracy, and second, by the combination of abolitionism in the North and aggressive slavocracy in the South. He accepted the "federal consensus" on slavery: it was a matter entirely within the jurisdiction of the states. Nevertheless, he raised no bar to the use of federal funds to advance gradual emancipation and colonization by the states, indeed advocated it in certain contexts. In the controversy over the right of petition for abolition of slavery in the district of columbia, he held that a gag was not only indefensible in principle but impolitic in practice, because it would make libertarian martyrs of the abolitionists. Clay opposed the annexation of texas, believing that the expansion of slavery it entailed must seriously disrupt the Union. When he seemed to equivocate on the issue in the election of 1844—his third run for the presidency—he lost enough northern votes to ensure his defeat. Returning to the Senate in 1849, he proposed a comprehensive plan for settlement of critical issues between North and South. It eventually became the compromise of 1850. Here, as in all of his constructive legislative endeavors, Clay evaded spurious questions of constitutional law and sought resolution on the level of policy in that "spirit of compromise" which, he said, lay at the foundation of the American republic. From his earlier part in effecting the missouri compromise (1820–1821) and the Compromise of 1833, he had earned the title of The Great Pacificator. The Compromise of 1850 added a third jewel to the crown.

Henry Clay was the most popular American statesman of his generation and one of the most respected. He helped to shape the course of constitutional development during forty years, not as a lawyer, judge, or theorist, but as a practical politician and legislator in national affairs.

Merrill D. Peterson
(1986)

Bibliography

Colton, Calvin, ed. (1856) 1904 The Works of Henry Clay. 10 Vols. New York: G. P. Putnam's.

Hopkins, James F. and Hargreaves, Mary W. M., eds. 1959–1981 The Papers of Henry Clay. Vols. 1–6. Lexington: University of Kentucky Press.

Seager, Robert II; Winslow, Richard E., III; and Hay, Melba Porter, eds. 1982–1984 Papers of Henry Clay. Vols. 7–8. Lexington: University of Kentucky Press.

Van Deusen, Glyndon G. 1937 The Life of Henry Clay. Boston: Houghton, Mifflin.