Mr. President: This bill, making further provision for enforcing the
embargo, requires all our attention. We are not on ordinary business.
An embargo for an indefinite period, over a great country like ours,
abounding in rich staples and domestic products, and carrying on in
its own vessels an extensive and profitable commerce, is a phenomenon
in the civilized world. We are about entering on the second year
of this novel measure, and even in defiance of the lessons which
experience teaches, that without producing any beneficial results, it
is embroiling the choicest interests of the nation. On foreign powers
it has made no impression, and its ruinous effect on our own country,
we see in the waste of private property and public revenue; in the
discontents of our citizens; in the perplexed state of the public
councils, and the increasing difficulties that are fast gathering
round the Government. The friends of the embargo say, that it has been
evaded and violated, but that when strictly enforced, it will compel
foreign nations to respect our rights. Under these impressions, the
system is to be maintained. To enforce it, the powers of the Government
are to be put in array throughout our country, especially in places
where discontents are manifested; and an extension is to be given to
that system of arbitrary seizures of vessels, goods, merchandise,
and domestic products, on suspicion of their being intended for
exportation, which came in with the embargo laws, and has attended
their execution.
In all this, sir, I see nothing that is to conciliate the conflicting
opinions and passions of our citizens, and restore concord amongst
them. I see nothing that will invigorate the public councils, and
resuscitate the dormant spirit and resources of the nation. To me
it seems that the Administration, without presenting to public view
any definite object or course, are pressing forward our affairs into
a chaos of inextricable difficulties. And I cannot but regard this
bill as holding a prominent place among the measures leading on that
unfortunate issue.
This bill bears marks of distrust entertained by the Government of
the people, or a considerable portion of them, and of the State
authorities; it places the coasting trade under further and vexatious
restraints, as well as its general regulations under the control of the
President. It intrenches on the municipal polity of the States, and
the intercourse of the people in their ordinary business. And, what
above all will wound the public sentiment, for the accustomed and mild
means of executing the laws by civil process through the tribunals of
justice, it substitutes military powers to be called out and exercised,
not in aid, but in place, of the civil authorities.
The coasting trade is placed under the regulation of the President by
this bill:
1st. Collectors may refuse permission to put a cargo on board of any
ship, vessel, or boat, in any case where they have their own personal
suspicions that it is intended for foreign exportation, and in every
case which may be comprehended within the scope of any general
instructions, issued by command of the President. But there is a
proviso as to coasting vessels uniformly employed in the navigation of
bays, sounds, rivers, and lakes, which shall have obtained a general
permission.
2d. General permissions may be granted to the last-mentioned vessels,
under such general instructions as the President of the United States
may give, when it can be done without danger of the embargo being
violated, to take on board such articles as may be designated in such
general permission or permissions.
By these general instructions, the President may prescribe the kind and
quantity of exports from, and imports into the individual States, and
from and to the particular districts within a State. He may suspend
them in part or in whole.
The power of issuing general instructions now proposed to be given
to the President by law, he exercised in the recess of Congress,
and in my opinion, without law. The Governor of Massachusetts was
authorized to give certificates, or licenses for the importation
of flour into that State; and, under general instructions from the
President, without personal suspicion of his own, the collector at
Charleston, in South Carolina, detained a vessel; which called forth
the independent exercise of the judicial power of the circuit court
in that State, to control the President's instructions. I am sensible
the Administration and its friends have an arduous task in executing
the embargo; difficulties beset them on every side; difficulties
inherent in the measure itself, and not to be overcome by accumulating
rigorous penalties, and an extension of the Executive power. The power
to regulate commerce is vested in Congress, and by granting it to the
President, do we not transfer to him one of the most important and
delicate of the legislative powers? What State would have adopted the
constitution, if it had been foreseen that this power would be granted
to any man, however distinguished by office?
The sections I have considered, principally affect merchants and
seafaring men in their business, at stores, custom-houses, about
wharves, ships, and vessels. But other sections take a wider range, and
intrench on the ordinary concerns of the great body of the people, by
the powers they give for unreasonable and arbitrary searches for, and
seizures of their property.
Collectors of the customs throughout the United States, by the tenth
section, are empowered to take into custody specie, or any articles
of domestic growth or manufacture, under these circumstances, when
deposited in unusual places, in unusual quantities, in places where
there is reason to believe they are intended for exportation in
vessels, sleighs, or other carriages, or in any manner apparently
on their way towards the territories of foreign nations, or a place
whence such articles are intended to be exported. And, when taken into
custody, they are not permitted to be removed without bonds being given
for their being relanded in some place whence, in the opinion of the
collector, there is no danger of their being exported.
Without warrant founded on proof, from suspicion only, may this
unbounded license be exercised. Our houses, heretofore our castles, and
the secure abodes of our families, may be thrown open to the visits
of collectors to search for and seize our money and goods, whenever
instigated by suspicion, prejudice, resentment, or party spirit.
No place is to be protected; the people may every where be exposed,
at home, on the way, and abroad. Specie and goods thus seized without
warrant, and on suspicion only, are not to be removed unless and
until bond with sureties shall be given for landing or delivering the
same in some place of the United States, whence, in the opinion of
the collector, there shall not be any danger of such articles being
exported. These provisions strike at the vital principles of a free
government; and are they not contrary to the fourth and sixth articles
of amendments to the constitution? Are not these searches and seizures,
without warrant, on the mere suspicion of a collector, unreasonable
searches and seizures? And is not a man thereby to be deprived of
property without due process of law?
The military may be employed by such person as the President may have
empowered. He may designate, at certain places in the States, persons
to call out such part of the land or naval forces of the United States,
or of the militia, as may be judged necessary. Those will be selected
who are most convenient and in all respects qualified to act in the
scenes to which they may be called. In these appointments the Senate is
to have no concurrence. They are to be Presidential agents for issuing
requisitions to the standing army, for militia, and not amenable to
any tribunal for their conduct. Heretofore a delicate and respectful
attention has been paid to the State authorities on this subject. The
requisitions of the General Government for the militia have been made
to the Governors of the States; and what reason is there for taking a
different course to enforce the embargo?
Under our present system have not insurrections been suppressed,
rebellions quelled, and combinations and resistance against lawful
authority overcome, by the force of the General Government in
co-operation with the State Governments? Is not the authority of
the marshals competent to the execution of the laws? I see no cause
for these arrays of the military throughout the country, and the
unrestrained license that is to be given to its operations. It is a
fundamental principle of a free government, "that the military be kept
in subordination to the civil power," and never be put in motion until
those be found incompetent to preserve the public peace and authority.
But, by the provisions of this bill, these Presidential agents may
call out the standing army or militia, or part of them, to follow in
the collector's train, to seize specie and goods in houses, stores,
and elsewhere, and generally for executing the embargo laws. And
even the public peace, so far as respects the suppressing armed and
riotous assemblages of persons resisting the custom-house officers in
the exercise of their duties, it would seem can no longer be confided
to the States, and it is thought necessary to surround custom-house
officers with bands of the standing army or militia.
The bill before us is bottomed on a report of the Secretary of the
Treasury. How often were his strenuous remonstrances, and those of
the chairman of the committee who reported the bill, (Mr. GILES,)
formerly heard against the extension of the Executive patronage and
influence; the interference of the General Government in the local
policy of the States, and, the ordinary concerns of the people; and,
above all, against standing armies? Then no such Executive prerogatives
were claimed as this bill contains; no such attempts made as here are
made for intrenchments on the internal policy of the States, and the
ordinary concerns of the people; and then our army, small in comparison
with the present establishment, was kept aloof from the affairs of the
State, and the persons and property of the citizens. Our country was
happy, prosperous, and respected. The present crisis is portentous.
Internal disquiets will not be healed, nor public sentiment controlled,
by precipitate and rash measures. It is time for the public councils
to pause. This bill, sir, ought not to pass. It strikes at the vital
principles of our republican system. It proposes to place the country
in a time of peace under military law, the first appearance of which
ought here to be resisted with all our talents and efforts. It proposes
to introduce a military despotism, to which freemen can never submit,
and which can never govern except by terror and carnage.
TUESDAY, December 20.
_Enforcement of the Embargo._
Mr. GILES said, I am sensible that I owe an apology to the Senate, as
chairman of the committee, for not having made an exposition of the
objects and principles of the bill, reported for consideration, at an
earlier stage of the discussion. This omission has not in the smallest
degree been influenced by any apprehension, that these principles are
indefensible; but, in some degree, from a desire to screen myself,
as much as possible, from intermixing in discussions; a task which
is never agreeable, but is at present peculiarly distressing and
afflicting to my feelings. I also thought that the session had already
been sufficiently fruitful of discussions intimately connected with the
bill before us; and that the public interests, at this time, required
action. I know, too, sir, that I owe an apology to the Senate, for the
great number of amendments which, under their indulgence, has been
made to this bill after it was first presented to their consideration.
But, sir, you will find some apology in the intrinsic difficulty
and delicacy of the subject itself, and also in the disposition
manifested by the committee, to give to the objections made by the
opponents of the bill, that respectful attention to which many of
them were certainly entitled, and to accommodate its provisions, as
far as possible, to the views of those gentlemen. After every effort,
however, to effect this object, it still appears that the bill presents
temptations for addressing the popular sensibility too strong to be
resisted by gentlemen in the opposition. They have, accordingly,
with great zeal and ability, described the provisions of the bill as
dangerous and alarming to the rights and liberties of the people.
This, sir, is the common course of opposition, and applies to every
strong measure requiring the exercise of much Executive discretion. I
think, however, I shall be able to show that there is no new principle
contained in the provisions of that bill; but that every provision it
contains is amply justified by precedents in pre-existing laws, which
have not been found to be so destructive to the rights of the people,
as gentlemen strenuously insist similar provisions in this bill will
be, if they receive the sanction of law. In performing this task, I
shall bring into view only such parts of the bill as have been objected
to by gentlemen, presuming that, as their objections have evidently
been the result of great industry and deliberation, all other parts of
the bill remain unobjectionable. I shall also, perhaps, avoid some of
the observations respecting minute details; apply my remarks generally
to principles; and thus bring my observations and replies into as short
a compass as possible.
The gentleman from Connecticut (Mr. GOODRICH) commenced his remarks
by declaring the embargo to be a permanent measure, deprecating its
effects, as ruinous at home and ineffectual abroad. These observations
have been repeatedly made by others, and already replied to by several
gentlemen, as well as myself; and I am strengthened in the correctness
of those replies by all the further reflections I have been enabled
to bestow upon them. This part of the subject will, therefore, be
passed over without further notice, except to remark, that perhaps
one of the causes of the inefficacy of the measure abroad, has been
the unprincipled violations of its provisions at home; and the great
and leading object of the present bill is to prevent such violations.
Upon this part of the subject I am happy to find that one of its most
strenuous and judicious opposers (Mr. HILLHOUSE) has candidly informed
the Senate, that the provisions of the bill are admirably calculated
to effect that object--and if in their practical operation they should
realize the character anticipated by that gentleman, I shall feel no
regret for that portion of labor I have bestowed upon them. Indeed, I
shall congratulate the committee as well as myself in having been so
fortunate as to find a competent remedy for so great an evil.
The gentleman from Connecticut (Mr. GOODRICH) informs us, that
the public councils are pressing on to measures pregnant with the
most alarming results. I hope the gentleman is mistaken in his
apprehensions, and I should have been much pleased if the gentleman had
been good enough to point them to a better course; but, sir, he has
not done so, nor has any gentleman on the same side of the question.
Indeed, sir, it would give me great pleasure to do something that would
be agreeable to our Eastern friends; but, unfortunately, amidst all the
intrinsic difficulties which press upon us, that seems to be not among
the least of them. The gentlemen themselves will not explicitly tell us
what would produce the effect--and I am inclined to think that nothing
short of putting the Government in their hands would do it. Even this
would not be exempt from difficulties. The gentlemen from that part
of the United States are nearly equally divided among themselves
respecting the proper course of measures to be pursued, and there is
an immense majority in every other part of the United States, in favor
of the measures proposed; we are therefore surrounded with real and
intrinsic difficulties from every quarter, and those of a domestic
nature are infinitely the most formidable, and most to be deprecated.
Indeed, sir, under present circumstances, the administration of
the Government cannot be a pleasant task; and, in my judgment, it
requires a great effort of patriotism to undertake it, not on account
of external pressures, but on account of internal discontents,
stimulated, too, by so many artful intrigues. But for these unfortunate
circumstances, every gentleman would feel an honorable pride in
contributing his efforts to devise measures for repelling foreign
aggressions, and he would court the responsibility attached to his
station. I would not, Mr. President, give up a scintilla of that
portion of the responsibility which the crisis imposes on me. Indeed,
sir, to have the honor of bearing my full share of it, is the only
inducement I have at this moment for occupying a place on this floor.
Without that consideration I should now be in retirement. But when I
turn my eyes upon internal divisions, discontents and violations of
law, and am compelled to think of measures for their suppression, it
produces the most painful sensations and distressing reflections.
The great principle of objection, the gentlemen tell us, consists
in the transfer of legislative powers to the Executive Department.
This is an old an abstract question, often heretofore brought into
view, and leads to endless discussion. I think I shall be able to
show that the bill introduces no new principle in this respect, but
only applies an established principle to new practical objects. The
general principle of the separation of departments is generally
admitted in the abstract; but the difficulties in this discussion
arise from applying the principle to practical objects. The great
difficulty exists in the attempt to fix on the precise boundary
line between legislative and Executive powers in their practical
operation. This is not possi-[1] You might attempt the search for the
philosopher's stone, or the discovery of the perpetual motion, with
as much prospect of success. The reason of this difficulty is, that
the practical objects and events to which this abstract principle is
attempted to be applied, are perpetually varying, according to the
practical progression of human affairs, and therefore cannot admit of
any uniform standard of application. This reflection might have saved
the gentleman from Massachusetts (Mr. LLOYD) the trouble of reading to
us the constitution or bill of rights of Massachusetts, in which the
principle of separation of departments is very clearly and properly
laid down, and which will be very readily assented to in the abstract,
but which forms no part of the question in dispute. It cannot,
however, escape observation, that this principle is not laid down,
even in the abstract, in the Constitution of the United States; and,
although it is the leading principle of the constitution, and probably
was the principal guide in its formation, it is nevertheless in several
respects departed from.
This body partakes essentially both of the legislative and Executive
powers of the Government. The Executive Department also partakes of
the legislative powers, as far at least as an approbation of, and a
qualified negative of the laws extend, &c. I make these observations,
however, not in derogation of the general principle of the separation
of powers among the several departments, so far as is practicable, but
merely to show that there must necessarily be some limitations in its
practical operation. Perhaps the best general rule for guiding our
discretion upon this subject will be found to consist in this: That
legislation ought to extend as far as definition is practicable--when
definition stops, execution must necessarily begin. But some of
the particular provisions of this bill will furnish more precise
illustrations of my opinions upon this question; it will, therefore, be
waived until I shall come to their consideration.
I will now proceed to examine the more particular objections urged
against the detail of this bill. Its provisions respecting the coasting
trade are said to be objectionable in the following respects:
First objection: The penalty of the bonds required, is said to be
excessive. To enable us to decide correctly upon this point, the object
proposed to be effected, and the penalty required, should be considered
in reference to each other. The object is to prevent, by means of
coasting vessels, domestic articles from being carried abroad. Flour,
for instance, to the West Indies. The price of that article here is
less than five dollars; in the West Indies it is said to be thirty
and upward. The penalty of the bonds required is six times the amount
of the value of the vessel and cargo. Is any gentleman prepared to
say a smaller penalty will effect the object? I presume not. Indeed,
the committee were disposed to put it at the lowest possible point,
consistently with an effectuation of the object; and probably it is
rather too low for that purpose. As to the penalty, according to the
tonnage of vessels, it is believed no alteration in the existing
laws is made in that respect. These penalties will appear the more
reasonable, when it is recollected, that through the indulgence given
of the coasting trade, most of the violations of the embargo laws have
been contrived and effected.
Second objection: The collectors may be influenced by party spirit in
the exercise of their discretion. It is hoped that this will not be the
case, and if it were, it would certainly be much to be regretted. It
may, however, probably happen, and is one of the inconveniences of the
system.
Third objection: The high penalties of the bonds will drive many
persons of small means from their accustomed occupations. They will
not be able to procure the competent security for their prosecution.
It is not to be presumed that this will be the effect to any great
extent. If the owner is known to be honest, and has in view legal and
honest objects, I have very little apprehension of his not being able
to get the security required. But here the question recurs, are these
apprehended inconveniences of such a nature as to render it necessary
to abandon a great national object, for the accommodation of a few
individuals who are affected by them? Is the last effort to preserve
the peace of the nation, to be abandoned from these considerations? I
should conclude, certainly not.
The next objections are made to the seventh section of the bill, which
provides that stress of weather, and other unavoidable accidents at
sea, shall not be given in evidence in a trial at law to save the
penalty of bonds given as security against the violation of the embargo
laws. It is known that, through pretexts derived from this permission,
at present, most of the violations of these laws have been committed
with impunity--it is, therefore, important to the future execution of
the laws, to take away these pretexts. But it is objected that this
regulation manifests a distrust of oaths. It does, of what is called
custom-house oaths; their violation is already almost proverbial; it
does not, however, produce nor encourage this profligacy; it takes
away the temptation to it. It is further said, it impairs the trial by
jury--very far from it; the trial by jury still exists; this provision
only regulates the evidence to be produced before the jury. Gentlemen
state particular hardships which may take place under this regulation.
It is easy to state possible hardships under any general regulation;
but they have never been deemed sufficient objections to general
regulations producing in other respects beneficial results. This bill,
however, contains a provision for relief in all cases of hardships
under the embargo laws. The Secretary of the Treasury is authorized to
grant relief in all such cases. This power, vested in the Secretary,
is also objected to. It is said to manifest a distrust of courts, and
to transfer their powers to the Secretary of the Treasury. Whatever
may be my distrust of some of the courts of the United States, I can
say that consideration furnished no inducement to this provision. It
is a power not suited to the organization of courts, and it has for
a long time been exercised by the Secretary of the Treasury without
being complained of. Congress proceeded with great caution on this
subject. On the third day of March, 1797, they first introduced this
principle into their laws in relation to the collection of the revenue;
and, after an experiment of nearly three years, on the eleventh day
of February, 1800, they made the law perpetual. This will appear from
the 12th section of this bill, which merely borrows this provision
from pre-existing laws. It introduces no new principle whatever. This
doctrine is carried still further, by an act passed the 3d of March,
1807, in the eighth volume of the laws, page 318:
"An Act to prevent settlements being made on lands ceded to the
United States, until authorized by law.
"And it shall moreover be lawful for the President of the
United States to direct the Marshal, or officer acting as
Marshal, in the manner hereinafter directed, and also to
take such other measures, and to employ such military force
as he may judge necessary and proper, to remove from lands
ceded, or secured to the United States by treaty, or cession
as aforesaid, any person or persons who shall hereafter take
possession of the same, or make or attempt to make a settlement
thereon, until authorized by law."
Here the President is authorized to use the military force to remove
settlers from the public lands without the intervention of courts; and
the reason is, that the peculiarity of the case is not suited to the
jurisdiction of courts, nor would their powers be competent to the
object, nor, indeed, are courts allowed to interfere with any claims
of individuals against the United States, but Congress undertakes
to decide upon all such cases finally and peremptorily, without the
intervention of courts.
This part of the bill is, therefore, supported both by principle and
precedent.
While speaking of the distrust of courts, I hope I may be indulged in
remarking, that individually my respect for judicial proceedings is
materially impaired. I find, sir, that latterly, in some instances,
the callous insensibility to extrinsic objects, which, in times past,
was thought the most honorable trait in the character of an upright
judge, is now, by some courts, entirely disrespected. It seems, by some
judges, to be no longer thought an ornament to the judicial character,
but is now substituted by the most capricious sensibilities.
WEDNESDAY, December 21.
_Enforcement of the Embargo._
Mr. POPE spoke in favor of the bill.
And on the question, Shall this bill pass? it was determined in the
affirmative--yeas 20, nays 7, as follows:
YEAS.--Messrs. Anderson, Condit, Crawford, Franklin, Gaillard,
Giles, Gregg, Kitchel, Milledge, Mitchill, Moore, Pope,
Robinson, Smith of Maryland, Smith of New York, Smith of
Tennessee, Sumter, Thruston, Tiffin, and Turner.
NAYS.--Messrs. Gilman, Goodrich, Hillhouse, Lloyd, Mathewson,
Pickering, and White.
WEDNESDAY, December 28.
The VICE PRESIDENT being absent by reason of the ill state of his
health, the Senate proceeded to the election of a President _pro
tempore_, as the constitution provides; and STEPHEN R. BRADLEY was
appointed.
FRIDAY, January 6, 1809.
RETURN JONATHAN MEIGS, jun., appointed a Senator by the General
Assembly of the State of Ohio, to fill the vacancy occasioned by the
resignation of JOHN SMITH, and, also, for six years ensuing the third
day of March next, attended, and produced his credentials, which were
read; and the oath prescribed by law was administered to him.
TUESDAY, January 10.
JAMES A. BAYARD, from the State of Delaware, attended.