Mr. GOODRICH rose, and addressed the Senate as follows--

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.

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