As soon as the Journal was read--

Mr. BACON said: I rise with feelings of the deepest sensibility, to

perform a solemn and painful duty. It is to announce to the House the

death of my friend and colleague, Mr. CROWNINSHIELD, who expired this

morning at six o’clock.

Whereupon, on motion of Mr. FISK,

_Resolved, unanimously_, That a committee be appointed to take

order for superintending the funeral of JACOB CROWNINSHIELD,

late a Representative from the State of Massachusetts.

_Ordered_, That Mr. CUTTS, Mr. TAGGART, Mr. QUINCY, Mr. COOK, Mr. GREEN,

Mr. ELY, and Mr. BACON, be appointed a committee, pursuant to the said

resolution.

On motion of Mr. D. R. WILLIAMS,

_Resolved, unanimously_, That the members of this House will

testify their respect for the memory of JACOB CROWNINSHIELD,

late one of their body, by wearing crape on the left arm for

one month.

On motion of Mr. NEWTON,

_Resolved, unanimously_, That the members of this House will

attend the funeral of the late JACOB CROWNINSHIELD, to-morrow

morning at ten o’clock.

On motion of Mr. SMILIE,

_Resolved, unanimously_, That a message be sent to the Senate

to notify them of the death of JACOB CROWNINSHIELD, late a

member of this House, and that his funeral will take place

to-morrow morning at ten o’clock.

SATURDAY, April 16.

The House met at nine o’clock, and after reading the Journal, adjourned

till twelve o’clock, in order to attend the funeral of Mr. CROWNINSHIELD.

The House met accordingly at twelve o’clock.

TUESDAY, April 19.

_Suspension of the Embargo._

Mr. RANDOLPH said that they had lately gotten into a strange habit of

calling things by their wrong names. The other day, said he, we received

a bill from the Senate for making an addition to the Peace Establishment,

without limitation; we christened the bill by the style and title of a

bill to raise for a limited time an additional military force. Here is

a bill authorizing the President of the United States, under certain

conditions, to suspend the operation of the embargo; and for certain

conditions certainly none ever were nearer uncertainty than these are.

What are the conditions? They are not positive, and of these, such as

they are, the President at last is to determine. The President, under

certain conditions, is to suspend the embargo, and when you inquire what

those conditions are, you find them uncertainties--contingencies of

which, when they happen, he is the sole and exclusive judge. Now if we do

authorize the President to suspend the embargo under certain conditions,

let us ascertain them. Let them not be uncertain. Let him not have a

discretion whether he will suspend the embargo or not.

It is not my purpose now to recapitulate my former argument on this

subject; but I do say that if the President of the United States is

to have a discretion at all, it ought to be absolute and unqualified,

not only substantially so, but nominally so; and the objection to this

bill is, that under the pretence of qualification to discretion, under

the mask (not by this intending any disrespect to the other branch of

the Legislature) of restricting the power, you do in fact give him an

unqualified power; and no gentleman who reads the bill can for a moment

hesitate to acknowledge the correctness and soundness of the doctrine. I

rise not so much to enter into discussion (for I feel myself unable) as

to offer an amendment, which, if it be lost in Committee of the Whole, I

will reiterate in the House to ascertain its sense. I move therefore to

strike out from the enacting clause in the first section to the end of it

and insert:

“That the act laying an embargo on all ships and vessels in

the ports and harbors of the United States, and the several

acts supplementary thereto, shall be repealed, so far as they

prohibit trade with France and her dependencies, and States

associated in common cause with her, as soon as the United

States shall be exempted from the operation of her decrees of

the 21st November, 1806, and December, 1807, and the President

of the United States shall have officially been notified

thereof, and shall have received assurances that the existing

stipulations between the United States and France will be

respected by her.

“_And be it further enacted_, That the said acts shall be

repealed, so far as they prohibit trade with Great Britain,

her dependencies, and States associated in common cause with

her, as soon as her Orders of Council of November last shall

be revoked, so far as they affect the commerce of the United

States, and the President of the United States shall have

received official assurances thereof, and that the neutral

rights of the United States shall be respected by them. And

the President of the United States shall be and he is hereby

authorized and required, on the receipt of such assurances from

either of the two belligerents, to notify the same forthwith

by proclamation; whereupon the embargo shall be removed in

regard to such belligerents. And if such assurances be received

from both belligerents, proclamation shall in like manner be

forthwith issued; whereupon the acts aforesaid, and the several

acts supplementary thereto, shall cease and determine.”

I will state in a few words why I have not inserted in that amendment

any condition respecting reparation for the affair of the Chesapeake.

It was not because the bill from the Senate contains no such principle;

but because the embargo has never been considered, that I recollect,

certainly it was not so considered by the gentleman who moved the

resolution, as a reaction on our part in consequence of that outrage;

because the step was not taken till some time after that outrage; and

because it was taken before we knew whether reparation would be made

for the outrage or not. In fact it was never said by any gentleman who

advocated it, to have any connection with that transgression, which stood

on its own demerits. The embargo grew out of the French decrees and

British proclamations, and if justified by the British proclamation, was

assuredly yet more justified by the Orders of Council which followed it.

It was then a measure intended to meet the aggressions on our commerce

by the two belligerents; and not a measure of resentment in consequence

of the aggression on the Chesapeake. It is therefore that I have thought

proper not to mingle subjects which at all times ought to have been, and

I understand now are kept separate and distinct.

Mr. QUINCY.--Mr. Chairman, the amendment proposed to this bill by the

gentleman from Virginia (Mr. RANDOLPH) has for its object to limit the

Executive discretion in suspending the embargo to certain specified

events--the removal of the French decrees; the revocation of the British

Orders. It differs from the bill, as it restricts the range of the

President’s power to relieve the people from this oppressive measure. In

this point of view, it appears to me even more objectionable than the

bill itself. To neither can I yield my sanction. And as the view which

I shall offer will be different from any which has been taken of this

subject, I solicit the indulgence of the committee.

A few days since, when the principle of this bill was under discussion,

in the form of a resolution, a wide field was opened. Almost every

subject had the honors of debate except that which was the real object

of it. Our British and French relations, the merits and demerits of the

expired and rejected treaty, as well as those of the late negotiators,

and of the present Administration; all were canvassed. I enter not upon

these topics. They are of a high and most interesting nature; but their

connection with the principle of this bill is, to say the least, remote.

There are considerations intimately connected with it, enough to interest

our zeal and to awaken our anxiety.

The question referred to our consideration is, shall the President be

authorized to suspend the embargo on the occurrence of certain specified

contingencies? The same question is included in the proposed amendment

and the bill. Both limit the exercise of the power of suspension of the

embargo to the occurrence of certain events. The only difference is, that

the discretion given by the former is more limited; that given by the

latter is more liberal.

In the course of the former discussion a constitutional objection was

raised which, if well founded, puts an end to both bill and amendment.

It is impossible, therefore, not to give it a short examination. It was

contended that the constitution had not given this House the power to

authorize the President at his discretion to suspend a law. The gentleman

from Maryland (Mr. KEY) and the gentleman from Virginia, (Mr. RANDOLPH,)

both of great authority and influence in this House, maintained this

doctrine with no less zeal than eloquence. I place my opinion, with

great diffidence, in the scale, opposite to theirs. But as my conviction

is different, I must give the reasons for it--why I adhere to the old

canons; those which have been received as the rule, both of faith and

practice, by every political sect which has had power, ever since the

adoption of the constitution, rather than to these new dogmas.

The Constitution of the United States, as I understand it, has in every

part reference to the nature of the things and the necessities of

society. No portion of it was intended as a mere ground for the trial

of technical skill or verbal ingenuity. The direct, express powers,

with which it invests Congress, are always to be so construed as to

enable the people to attain the end for which they were given. This is

to be gathered from the nature of those powers, compared with the known

exigencies of society and the other provisions of the constitution. If a

question arise, as in this case, concerning the extent of the incidental

and implied powers vested in us by the constitution, the instrument

itself contains the criterion by which it is to be decided. We have

authority to make “laws necessary and proper for carrying into execution”

powers unquestionably vested. Reference must be had to the nature of

these powers to know what is “necessary and proper” for their wise

execution. When this necessity and propriety appear, the constitution

has enabled us to make the correspondent provisions. To the execution

of many of the powers vested in us by the constitution, a discretion is

necessarily and properly incident. And when this appears from the nature

of any particular power, it is certainly competent for us to provide by

law that such a discretion shall be exercised. Thus, for instance, the

power to borrow money must in its exercise be regulated, from its very

nature, by circumstances, not always to be anticipated by the Legislature

at the time of passing a law authorizing a loan. Will any man contend

that the Legislature is necessitated to direct either absolutely that a

certain sum shall be borrowed, or to limit the event on which the loan

is to take place? Cannot it vest a general discretion to borrow or not

to borrow, according to the view which the Executive may possess of the

state of the Treasury, and of the general exigencies of the country,

particularly in cases where the loan is contemplated at some future

day, when perhaps Congress is not in session, and when the state of the

Treasury, or of the country, cannot be foreseen? In the case of the two

millions appropriated for the purchase of the Floridas, such a discretion

was invested in the Executive. He was authorized, “if necessary, to

borrow the sum, or any part thereof.” This authority he never exercised,

and thus, according to the argument of gentlemen on the other side, he

has made null a legislative act. For so far as it depended upon his

discretion, this not being exercised, it is a nullity. The power “to pay

the debts of the United States” will present a case in which, from the

nature of the power, a discretion to suspend the operation of a law may

be necessary and proper to its execution. Congress by one law direct the

executive to pay off the eight per cent. stock. Will gentlemen seriously

contend that by another it may not invest him with a general discretion

to stop the payment; that is, to suspend the operation of the former

law, if the state of the Treasury, or even more generally if the public

good should in his opinion require it? An epidemic prevails in one of

our commercial cities; intercourse is prohibited with it; Congress is

about to terminate its session, and the distemper still rages. Can it be

questioned, that it is within our constitutional power to authorize the

President to suspend the operation of the law, whenever the public safety

will permit? Whenever, in his opinion, it is expedient? The meanest

individual in society, in the most humble transactions of business, can

avail himself of the discretion of his confidential agent, in cases where

his own cannot be applied. Is it possible that the combined wisdom of the

nation is debarred from investing a similar discretion, whenever, from

the nature of the particular power, it is necessary and proper to its

execution?

The power of suspending laws, against which we have so many warnings in

history, was a power exercised contrary to the law, or in denial of its

authority, and not under the law and by virtue of its express investment.

Without entering more minutely into the argument, I cannot doubt but

that Congress does possess the power to authorize the President by law

to exercise a discretionary suspension of a law. A contrary doctrine

would lead to multiplied inconveniences; and would be wholly inconsistent

with the proper execution of some of the powers of the constitution. It

is true that this, like every other power, is liable to abuse. But we

are not to forego a healthy action, because, in its excess, it may be

injurious.

The expediency of investing the Executive with such an authority, is

always a critical question. In this case, from the magnitude of the

subject, and the manner in which the embargo oppresses all our interests,

the inquiry into our duty in relation to it, is most solemn and weighty.

It is certain some provision must be made touching the embargo, previous

to our adjournment. A whole people is laboring under a most grievous

compression. All the business of the nation is deranged. All its active

hopes are frustrated. All its industry stagnant. Its numerous products

hastening to their market, are stopped in their course. A dam is thrown

across the current, and every hour the strength and the tendency towards

resistance is accumulating. The scene we are now witnessing is altogether

unparalleled in history. The tales of fiction have no parallel for

it. A new writ is executed upon a whole people. Not, indeed, the old

monarchical writ, _ne exeat regum_, but a new republican writ, _ne exeat

rempublicam_. Freemen, in the pride of their liberty, have restraints

imposed on them, which despotism never exercised. They are fastened down

to the soil by the enchantment of law; and their property vanishes in the

very process of preservation. It is impossible for us to separate and

leave such a people, at such a moment as this, without administering some

opiate to their distress. Some hope, however distant, of alleviation must

be proffered; some prospect of relief opened. Otherwise, justly might

me fear for the result of such an unexampled pressure. Who can say what

counsels despair might suggest, or what weapons it might furnish?

Some provision then, in relation to the embargo, is unavoidable. The

nature of it, is the inquiry. Three courses have been proposed--to

repeal it; to stay here and watch it; to leave with the Executive the

power to suspend it. Concerning repeal I will say nothing. I respect the

known and immutable determination of the majority of this House. However

convinced I may be, that repeal is the only wise and probably the only

safe course, I cannot persuade myself to urge arguments which have been

often repeated, and to which, so far from granting them any weight, very

few seem willing to listen. The end to which I aim will not counteract

the settled plan of policy. I consider the embargo as a measure from

which we are not to recede, at least not during the present session. And

my object of research is, in what hands, and under what auspices it shall

be left, so as best to effect its avowed purpose and least to injure the

community. Repeal, then, is out of the question. Shall we stay by and

watch? This has been recommended. Watch! What? “Why, the crisis!” And do

gentlemen seriously believe that any crisis, which events in Europe are

likely to produce will be either prevented or meliorated, by such a body

as this, remaining, during the whole summer, perched upon this bill?

To the tempest which is abroad we can give no direction; over it we

have no control. It may spend its force on the ocean, now desolate by

our laws, or it may lay waste our shores. We have abandoned the former,

and for the latter, though we have been six months in session, we have

prepared no adequate shield. Besides, in my apprehension, it is the

first duty of this House to expedite the return of its members to their

constituents. We have been six months in continued session. We begin, I

fear, to lose our sympathies for those whom we represent. What can we

know, in this wilderness, of the effects of our measures upon civilized

and commercial life? We see nothing, we feel nothing, but through the

intervention of newspapers, or of letters. The one obscured by the filth

of party; the other often distorted by personal feeling or by private

interest. It is our immediate, our indispensable duty, to mingle with

the mass of our brethren and by direct intercourse to learn their will;

to realize the temperature of their minds; to ascertain their sentiments

concerning our measures. The only course that remains is to leave with

the Executive the power to suspend the embargo. But the degree of power

with which he ought to be vested, is made a question. Shall he be limited

only by his sense of the public good, to be collected from all the

unforeseen circumstances which may occur during the recess; or shall it

be exercised only on the occurrence of certain specified contingencies?

The bill proposes the last mode. It also contains other provisions

highly exceptionable and dangerous; inasmuch as it permits the President

to raise the embargo, “_in part or in whole_,” and authorizes him to

exercise an unlimited discretion as to the penalties and restrictions

he may lay upon the commerce he shall allow. My objections to the bill,

therefore, are--first, that it limits the exercise of the Executive as

to the whole embargo, to particular events, which if they do not occur,

no discretion can be exercised, and let the necessity of abandoning the

measure be, in other respects, ever so great, the specified events not

occurring, the embargo is absolute at least until the ensuing session;

next, that if the events do happen, the whole of the commerce he may in

his discretion set free, is entirely at his mercy; the door is opened to

every species of favoritism, personal or local. This power may not be

abused; but it ought not to be trusted. The true, the only safe ground

on which this measure, during our absence, ought to be placed is, that

which was taken in the year 1794. The President ought to have authority

to take off the prohibition, whenever, in his judgment, the public good

shall require; not partially, not under arbitrary bonds and restrictions;

but totally, if at all. I know that this will be rung in the popular

ear, as an unlimited power. Dictatorships, protectorships, “shadows dire

will throng into the memory.” But let gentlemen weigh the real nature of

the power I advocate, and they will find it not so enormous as it first

appears, and in effect much less than the bill itself proposes to invest.

In the one case he has the simple and solitary power of raising or

retaining the prohibition, according to his view of the public good. In

the other he is not only the judge of the events specified in the bill,

but also of the degree of commerce to be permitted, of the place from

which and to which it is to be allowed; he is the judge of its nature,

and has the power to impose whatever regulation he pleases. Surely there

can be no question but that the latter power is of much more magnitude

and more portentous than the former. I solicit gentlemen to lay aside

their prepossessions and to investigate what the substantial interest of

this country requires; to consider by what dispositions this measure may

be made least dangerous to the tranquillity and interests of this people;

and most productive of that peculiar good, which is avowed to be its

object. I address not those who deny our constitutional power to invest a

discretion to suspend, but I address the great majority, who are friendly

to this bill, who, by adopting it, sanction the constitutionality of the

grant of fresh authority to whom, therefore, the degree of discretion

is a fair question of expediency. In recommending that a discretion,

not limited by events, should be vested in the Executive, I can have

no personal wish to argument his power. He is no political friend of

mine. I deem it essential, both for the tranquillity of the people and

for the success of the measure, that such a power should be committed

to him. Neither personal nor party feelings shall prevent me from

advocating a measure, in my estimation, salutary to the most important

interests of this country. It is true that I am among the earliest and

the most uniform opponents of the embargo. I have seen nothing to vary

my original belief, that its policy was equally cruel to individuals

and mischievous to society. As a weapon to control foreign powers, it

seemed to me dubious in its effect, uncertain in its operation; of all

possible machinery the most difficult to set up, and the most expensive

to maintain. As a mean to preserve our resources, nothing could, to my

mind, be more ill adapted. The best guarantees of the interest society

has in the wealth of the members which compose it, are the industry,

intelligence, and enterprise of the individual proprietors, strengthened

as they always are by knowledge of business, and quickened by that which

gives the keenest edge to human ingenuity--self-interest. When all the

property of a multitude is at hazard, the simplest and surest way of

securing the greatest portion, is not to limit individual exertion, but

to stimulate it; not to conceal the nature of the exposure, but, by

giving a full knowledge of the state of things, to leave the wit of every

proprietor free, to work out the salvation of his property, according

to the opportunities he may discern. Notwithstanding the decrees of the

belligerents, there appeared to me a field wide enough to occupy and

reward mercantile enterprise. If we left commerce at liberty, we might,

according to the fable, lose some of her golden eggs; but if we crushed

commerce, the parent which produced them, with her our future hopes

perished. Without entering into the particular details whence these

conclusions resulted, it is enough that they were such as satisfied my

mind as to the duty of opposition to the system, in its incipient state,

and in all the restrictions which have grown out of it. But the system is

adopted. May it be successful! It is not to diminish, but to increase the

chance of that success, I urge that a discretion, unlimited by events,

should be vested in the Executive. I shall rejoice if this great miracle

be worked. I shall congratulate my country, if the experiment shall

prove, that the old world can be controlled by fear of being excluded

from the commerce of the new. Happy shall I be, if on the other side of

this dark valley of the shadow of death, through which our commercial

hopes are passing, shall be found regions of future safety and felicity.

Among all the propositions offered to this House, no man has suggested

that we ought to rise and leave this embargo until our return, pressing

upon the people, without some power of suspension vested in the

Executive. Why this uniformity of opinion? The reason is obvious; the

greatness of comparison. If the people were left six months without

hope, no man could anticipate the consequences. All agree that such an

experiment would be unwise and dangerous. Now, precisely the same reasons

which induce the majority not to go away without making some provision

for its removal, on which to feed popular expectation, is conclusive in

my mind that the discretion proposed to be invested should not be limited

by contingencies.

The embargo power, which now holds in its palsying gripe all the hopes of

this nation, is distinguished by two characteristics of material import,

in deciding what control shall be left over it during our recess. I

allude to its greatness and its novelty.

As to its greatness, nothing is like it. Every class of men feels it.

Every interest in the nation is affected by it. The merchant, the farmer,

the planter, the mechanic, the laboring poor; all, are sinking under its

weight. But there is this peculiar in it, that there is no equality in

its nature. It is not like taxation, which raises revenue according to

the average of wealth; burdening the rich and letting the poor go free.

But it presses upon the particular classes of society, in an inverse

ratio to the capacity of each to bear it. From those who have much it

takes, indeed, something. But from those who have little, it takes all.

For what hope is left to the industrious poor, when enterprise, activity,

and capital are proscribed their legitimate exercise? This power

resembles not the mild influences of an intelligent mind, balancing the

interests and condition of men, and so conducting a complicated machine

as to make inevitable pressure bear upon its strongest parts. But it is

like one of the blind visitations of nature; a tornado or a whirlwind.

It sweeps away the weak; it only strips the strong. The humble plant,

uprooted, is overwhelmed by the tempest. The oak escapes with the loss of

nothing except its annual honors. It is true the sheriff does not enter

any man’s house to collect a tax from his property. But want knocks at

his door and poverty thrusts his face into the window. And what relief

can the rich extend? They sit upon their heaps and feel them moulding

into ruins under them. The regulations of society forbid what was once

property, to be so any longer. For property depends on circulation;

on exchange; on ideal value. The power of property is all relative.

It depends not merely upon opinion here, but upon opinion in other

countries. If it be cut off from its destined market, much of it is worth

nothing, and all of it is worth infinitely less than when circulation is

unobstructed.

This embargo power is therefore of all powers the most enormous, in the

manner in which it affects the hopes and interests of a nation. But its

magnitude is not more remarkable than its novelty. An experiment, such as

is now making, was never before--I will not say tried--it never before

entered into the human imagination. There is nothing like it in the

narrations of history or in the tales of fiction. All the habits of a

mighty nation are at once counteracted. All their property depreciated.

All their external connections violated. Five millions of people are

engaged. They cannot go beyond the limits of that once free country;

now they are not even permitted to thrust their own property through

the grates. I am not now questioning its policy, its wisdom, or its

practicability, I am merely stating the fact. And I ask if such a power

as this, thus great, thus novel, thus interfering with all the great

passions and interests of a whole people, ought to be left for six months

in operation, without any power of control, except upon the occurrence

of certain specified and arbitrary contingencies? Who can foretell when

the spirit of endurance will cease? Who, when the strength of nature

shall outgrow the strength of your bonds? Or if they do, who can give a

pledge that the patience of the people will not first be exhausted? I

make a supposition, Mr. Chairman--you are a great physician; you take

a hearty, hale man, in the very pride of health, his young blood all

active in his veins, and you outstretch him on a bed; you stop up all his

natural orifices, you hermetically seal down his pores, so that nothing

shall escape outwards, and that all his functions and all his humors

shall be turned inward upon his system. While your patient is laboring in

the very crisis of this course of treatment, you, his physician, take a

journey into a far country, and you say to his attendant, “I have a great

experiment here in process, and a new one. It is all for the good of the

young man, so do not fail to adhere to it. These are my directions, and

the power with which I invest you. No attention is to be paid to any

internal symptom which may occur. Let the patient be convulsed as much as

he will, you are to remove none of my bandages. But, in case something

external should happen; if the sky should fall, and larks should begin to

appear, if three birds of Paradise should fly into the window, the great

purpose of all these sufferings is answered. Then, and then only, have

you my authority to administer relief.”

The conduct of such a physician, in such a case, would not be more

extraordinary than that of this House in the present, should it adjourn

and limit the discretion of the Executive to certain specified events

arbitrarily anticipated; leaving him destitute of the power to grant

relief should internal symptoms indicate that nothing else would prevent

convulsions. If the events you specify do not happen, then the embargo

is absolutely fixed until our return. Is there one among us that has

such an enlarged view of the nature and necessities of this people as

to warrant that such a system can continue six months longer? It is a

presumption which no known facts substantiate, and which the strength

and the universality of the passions such a pressure will set at work

in the community, render, to say the least, of very dubious credit. My

argument in this part has this prudential truth for its basis: If a great

power is put in motion, affecting great interests, the power which is

left to manage it should be adequate to its control. If the power be

not only great in its nature, but novel in its mode of operation, the

superintending power should be permitted to exercise a wise discretion;

for if you limit him by contingencies, the experiment may fail, or its

results be unexpected. In either case, nothing but shame or ruin would

be our portion.

But I ask the House to view this subject in relation to the success of

this measure, which the majority have justly so much at heart. Which

position of invested power is the most auspicious to a happy issue?

As soon as this House has risen, what think you will be the first

question every man in this nation will put to his neighbor? Will it not

be--“What has Congress done with the embargo?” Suppose the reply should

be--“They have made no provision. This corroding cancer is to be left

absolutely on the vitals six months longer.” Is there a man who doubts

but that such a reply would sink the heart of every owner of property,

and of every laborer in the community? No man can hesitate. The magnitude

of the evil, the certain prospect of so terrible a calamity thus long

protracted, would itself tend to counteract the continuance of the

measure by the discontent and despair it could not fail to produce in

the great body of the people. But suppose in reply to such a question,

it should be said--“The removal of the embargo depends upon events.

France must retrace her steps. England must apologize and atone for

her insolence. Two of the proudest and most powerful nations on the

globe must truckle for our favor, or we shall persist in maintaining

our dignified retirement.” What then would be the consequence? Would

not every reflecting man in the nation set himself at work to calculate

the probability of the occurrence of these events? If they were likely

to happen, the distress and discontent would be scarcely less than in

the case of absolute certainty for six months’ perpetuation of it. For

if the events do not happen, the embargo is absolute. Such a state of

popular mind all agree is little favorable either to perseverance in

the measure, or to its ultimate success. But suppose that the people

should find a discretionary power was invested in the Executive, to act

as in his judgment, according to circumstances, the public good should

require. Would not such a state of things have a direct tendency to allay

fear, to tranquillize discontent, and encourage endurance of suffering?

Should experience prove that it is absolutely insupportable, there is a

constitutional way of relief. The way of escape is not wholly closed. The

knowledge of this fact would be alone a support to the people. They would

endure it longer. They would endure it better. We would be secure of a

more cordial co-operation in the measure, as the people would see they

were not wholly hopeless, in case the experiment was oppressive. Surely

nothing can be more favorable to its success than producing such a state

of public sentiment.

We are but a young nation. The United States are scarcely yet hardened

into the bone of manhood. The whole period of our national existence has

been nothing else than a continued series of prosperity. The miseries

of the Revolutionary war were but as the pangs of parturition. The

experience of that period was of a nature not to be very useful after

our nation had acquired an individual form and a manly, constitutional

stamina. It is to be feared we have grown giddy with good fortune;

attributing the greatness of our prosperity to our own wisdom, rather

than to a course of events, and a guidance over which we had no

influence. It is to be feared that we are now entering that school of

adversity, the first blessing of which is to chastise an overweening

conceit of ourselves. A nation mistakes its relative consequence,

when it thinks its countenance, or its intercourse, or its existence,

all-important to the rest of the world. There is scarcely any people,

and none of any weight in the society of nations, which does not possess

within its own sphere all that is essential to its existence. An

individual who should retire from conversation with the world for the

purpose of taking vengeance on it for some real or imaginary wrong, would

soon find himself grievously mistaken. Notwithstanding the delusions of

self-flattery, he would certainly be taught that the world was moving

along just as well, after his dignified retirement, as it did while he

intermeddled with its concerns. The case of a nation which should make

a similar trial of its consequence to other nations, would not be very

different from that of such an individual. The intercourse of human life

has its basis in a natural reciprocity, which always exists, although

the vanity of nations, as well as of individuals, will often suggest to

inflated fancies, that they give more than they gain in the interchange

of friendship, of civilities, or of business. I conjure gentlemen not

to commit the nation upon the objects of this embargo measure, but by

leaving a wise discretion during our absence with the Executive, neither

to admit nor deny by the terms of our law that its object was to coerce

foreign nations. Such a state of things is safest for our own honor and

the wisest to secure success for this system of policy.

Mr. KEY said he well knew how painful it was to address gentlemen who

had already made up their minds; but the magnitude of this important

constitutional question compelled him to trespass for a few moments

on the patience of the House. I shall, said he, confine myself to the

constitutionality of the bill from the Senate, in hopes that if the House

feel the impressions on the subject which I feel, they will reject it;

or at least word it so, that the power given to the President shall be

constitutional. I was in hopes, from the talents of the gentlemen who

spoke the other day, that I should have heard some reply, some attempt

made to defeat the constitutional objections which I offered to the

resolution; if they did not meet them with fair argument, that they

would at least have shown what part of the conclusions which I had drawn

were incorrect. Gentlemen say the argument is not true. They must either

allow my deductions, or show wherein I am incorrect in drawing them. I

call upon the understanding of the House, and their attachment to the

constitution, to follow me but for a few moments, and see whether we can

vest the power contemplated by the bill.

All the respective Representatives of the people of the States at large,

and the sovereignty in a political capacity of each State, must concur

to enact a law. An honorable gentleman from Tennessee (Mr. CAMPBELL)

admitted that the power to repeal must be coextensive with the power

to make. If this be admitted, I will not fail to convince you that

in the manner in which this law is worded we cannot constitutionally

assent to it. What does it propose? To give the President of the United

States power to repeal an existing law now in force--upon what? Upon

the happening of certain contingencies in Europe? No; but if those

contingencies when they happen in his judgment shall render it safe to

repeal the law, a discretion is committed to him, upon the happening

of those events, to suspend the law. It is that discretion to which

I object. I do not say it would be improperly placed at all; but the

power and discretion to judge of the safety of the United States, is

a power legislative in its nature and effects, and as such, under the

constitution, cannot be exercised by one branch of the Legislature. I

pray gentlemen to note the distinction: that whenever the events happen,

if the President exercise his judgment upon those events, and suspend

the law, it is the exercise of a legislative power; the people, by the

constitution of the country, never meant to confide to any one man the

power of legislating for them.

Is the suspension of the law a legislative act? Can any man doubt it? It

is as much a legislative act as to repeal or make a law; and the same

power which can give any man a right to suspend a law, can give him an

equal right to make a law. I ask if these principles are not clear and

manifest to any one who will consider them? Is the power to suspend a

law a legislative act? Certainly; because it changes the law to a new

rule of conduct. For instance--the law is in full force; no ship or

vessel can depart from our ports. That prohibition ceases and a new rule

is established by the suspension of the law. Hence the suspension of a

law, by repealing an old rule of conduct and establishing a new one,

is unquestionably a legislative act. If I am correct--and I call upon

gentlemen to show in what respect I am not correct; I call upon them by

argument or reasoning to prove that the power of suspending a law is

not the power of repealing one--I then beg of you to lay your hand on

the Constitution of the United States, and say where is the power of

confiding the enaction (repeal and enaction requiring the same power) of

laws to any individual whatever? None can be found; and till some can be

found, we must recognize it as a sacred truth that under the constitution

none does exist.

I have endeavored to show that it is a legislative power, and my reason

for doing so was, to testify to a gentleman from Massachusetts (Mr.

QUINCY) that with this explanation I will give an easy understanding

of this question. I do not say that we cannot give the President upon

certain predicated events a power by which the embargo may be taken off.

Such may be done. But when it is done, a repeal or suspension must be

the act of the Congress of the United States, operating upon events or

facts to which the President by his proclamation may give publicity. Very

different is this bill from that; and from the idea of a gentleman who

the other day said that the President was only to judge of the fact. Of

what fact? Not of the happening of the events solely; for after they do

happen, he is to exercise his exclusive judgment whether it will comport

with the safety of the United States to suspend the embargo.

The gentleman does not seem to think that I draw a fair conclusion. I

think the bill does not restrict the power of the President to suspend

the law upon the happening of certain events. The President is to

exercise his sole judgment, upon the happening of these events, whether

it is consistent with the safety of the United States to remove the

embargo. Is he bound upon the happening of these events to take off the

embargo? If not, something more is to be done. He is to exercise a sound

discretion whether the trade of our country may be safely prosecuted. He

is not even then bound to suspend the whole of the embargo act; but to

suspend the whole or in part, under certain exceptions or restrictions.

Who is to make these exceptions and restrictions? The President of

the United States. Then when under this power of suspension, he makes

restrictions to which you are bound to adhere, does he not make the

suspension a law of the land? Most manifestly. If he does, is not the

suspension an actual imposition of new circumstances? He exercises a

legislative act by the suspension, and by fixing terms and conditions on

which the commerce of the United States may be afterwards carried on. In

both cases he exercises a legislative not an Executive power.

I said the other day that to give the President of the United States

power to suspend any law, was equal to giving him power to suspend all

laws. And I ask any gentlemen attached to the constitution, where they

will find that power. For if it be true in part it is true in the whole

as to the power; though we may not in our discretion confide the exercise

of the whole power to him. Now, I ask where the constitution gives us

a power to enable him to suspend any law. Of all the powers on earth,

even were it clear that we possess it, it ought to be exercised with

the greatest hesitation. It was perhaps the most dangerous prerogative

ever claimed by the Crown for several centuries in England--the power

of suspending the effects of laws enacted by the people. I call the

attention of gentlemen to recollect that when the last of the unfortunate

race of Stuart was about to abdicate the throne, one of the greatest

reasons for the abdication was his suspending laws; that he undertook

to suspend the penal laws respecting the Catholic system, and introduce

Popery. The courtiers of those days attempted to justify the power not

only as a prerogative of the Crown, but as often given to it by the

people; and in ransacking the history of England, but two precedents were

found. No sooner did the patriot convention meet, but in the most solemn

manner they declared that such a power did not exist; and governed as

that Parliament are now by corruption and intrigues, there never since

has been an attempt to give the King the power of suspending laws. My

observations flow from no want of confidence in the Executive. I am in

conscience and conviction opposed to our having the right to impart

a legislative power at all. In England it might be done, because the

Legislature is omnipotent; but we are limited within the sphere of our

constitution; and if the power is not there to be found, it can nowhere

exist. Hence I state that in forming this constitution it was declared

that all laws to be enforced must have the assent of the three branches

representing three distinct interests of the community; and to repeal

them the same formality is required.

It has been said, that powers analogous to that now attempted to be

given, have been exercised. One in the case of the non-importation law;

where the power to suspend was contained in the body of the law itself.

I can satisfy the gentleman from Massachusetts that the powers which he

refers to were all Executive, capable of being exercised by any one as

well as by the President. If we have authority to give the President of

the United States the power of suspending a law, have we not a right to

select any other man in society, and give him the same power? We cannot

transfer it anywhere. I ask the gentleman if we are capable of giving

power to the President of the United States to suspend a law, can we not

to any officer of Departments? If we cannot, what limits us? How are we

bound? By what clause in the constitution, and on what principle? The

President, it is true, is the person to whom, if we had the power, it

would be most properly confided; but there is nothing which confines

us exclusively to him, or which prevents us, if we have authority to

delegate the power at all, from giving it to another.

The honorable gentleman from Massachusetts (Mr. QUINCY) observed

that there is a distinction to be taken in the construction of the

constitution, from nature and necessity. I sit so remote from him

that I could not distinctly hear him. But I cannot see how there can

be any distinction in our power from the nature of things, the whole

constitution being in writing, containing limitations to our power; nor

from necessity, for if that is to have any weight, the constitution is a

perfect panacea. The constitution has limited our power, and never even

thought of nature and necessity; but told you to revolve in the sphere

prescribed to you. As to legislative power, there can be no distinction

in it on earth; it is a simple unique power--the right to make, suspend,

or repeal laws. There are powers created by that legislative authority;

and there the gentleman ought to have taken his distinction. The

legislative authority may communicate power to any man in the country

to be exercised. They may direct a survey of the country to be made,

and empower the President to appoint the person to execute it. This is

a power created by the Legislature to be exercised by the Executive,

not involving a legislative power at all. So by borrowing money. The

power of borrowing money was an authority given to Congress to enable

them to pledge the faith of the United States, as a guarantee to inspire

confidence in those who might lend. When a law passes for borrowing money

you may constitute any person in the country an agent to execute the

bond which may be given, to negotiate a loan, or to receive the money

in the Treasury. Is there in transacting this business any thing of a

legislative power? Certainly not. If by this bill the President of the

United States was limited upon the happening of certain specified events

to issue his proclamation, and thereupon that the law should cease and

determine, I should have no objection to it. I will read my ideas, which

might have met the ideas of the house, and will go far to explain to what

point I would go and where I would stop. [Mr. KEY then read an amendment

somewhat similar to that offered by Mr. RANDOLPH; that in the event of

peace or official notification of the rescinding the orders and decrees

of the belligerents, &c., the President should issue his proclamation

declaring the fact, and thereupon the law imposing an embargo should be

repealed.] This, said he, is a legislative repeal or suspension of the

act laying an embargo, upon the happening of certain events; involving

no power or discretion of any one human being. The suspension or repeal

follows by the constitutional exercise of our power, upon the happening

of those events which the Executive by proclamation shall notify. And let

any gentleman show any further power can constitutionally be given.

Other cases were mentioned, where impliedly or directly the President

might or must have power to suspend our laws. I agree with the gentleman

that we may give these powers in the manner which the constitution

requires. The President may have power to suspend our intercourse with

any port or country in the case of contagion. In this case it depends

upon the phraseology of the law whether the power be constitutionally

exercised or not. If we state in an intercourse law, that if a disease

shall exist in any of the West India Islands or elsewhere, and that upon

proclamation of the existence of such disease the law shall be suspended,

the provision made is entirely different from that contemplated by the

present bill. I say if gentlemen will attend to the distinction they

will find that it is as plain as the sun at noon-day. It requires but

little discernment to perceive that in the present case you devolve a

power of suspension or repeal; while, in the case adduced as parallel,

the law suspends itself. It requires but little distinction of ideas to

mark a difference between a case in which we ourselves by law suspend an

act upon the happening of an event yet in the womb of time, and a case in

which we give the Executive a power to suspend the law _ad libitum_ when

that event does occur.

I therefore do give the bill from the Senate my decided opposition, on

the ground that we cannot pass the bill as sent to us; not that I am

unwilling to raise the embargo, for I wish an immediate repeal.

Mr. HOLLAND said, when this subject had been first introduced he

had conceived it to be one of those plain cases which would require

no illustration. He had no idea the power could be doubted. He was

dissatisfied with the gentleman from Tennessee, because he had taken up

some time to show that they did possess the power; he then thought all

the time taken up on the subject was time lost. It had never been before

questioned; the power had been exercised from the commencement of the

Government to the present time, and never before doubted; and therefore

he had been dissatisfied with the gentleman from Tennessee, because he

took up a few minutes to show that they possessed the power. I am yet,

said he, unable to see that the principle of the bill is shaken by the

arguments I have heard against it, although much ingenuity has been

exercised on the subject by one or two gentlemen; but, when we come to

examine their arguments, they are far from being plausible, certainly

not solid. The gentleman from Maryland supposes that the maxim will

not be contradicted, that it takes the same power to repeal a law that

it does to make it. None will contradict it; but does it apply to this

case? Do we vest a power to repeal a law? It is correct that it requires

the same power to destroy as to create; that the power creating always

has power over the thing which it creates, and can modify it in any

manner. If then the power which makes a law, says at what particular

period and under what particular circumstances this law shall cease to

operate, does it follow that the power of suspension given to an agent

is an unconstitutional power? If a power be given by the creating power

to suspend a law, does it follow that this power has subverted the

original intention of the creator? When a power is invested to suspend

the operation of a law, the person who exercises this authority acts in

an Executive capacity, and only does what the law enjoins to be done.

If I am correct in this, all the arguments of gentlemen in opposition

to the bill fall to the ground. One gentleman says, that in relation to

the non-importation law, the power to suspend was contained within the

law itself. Does he mean to say, because this power was not contained

in the original embargo law, that we cannot give it by a subsequent

act? Certainly the gentleman does not mean this, because this if passed

will be a part of the same law; as it is a known principle that all

laws on the same subject shall be considered in the same manner as

though connected together. It is not material then whether the power

of suspension of a law be given in the body of the law itself, or by a

subsequent act. The gentleman from Virginia who proposed the amendment

under consideration says, if you will authorize a suspension until twenty

days after the commencement of the next session of Congress, why not give

him power to repeal it altogether? There is some reason why it should

not be repealed altogether; for, were it to be repealed, it might be

necessary to reinstate it, which would give us the trouble of reenacting

the law; and Congress will be better able then to judge whether it shall

be repealed or not, than they are now.

Mr. FINDLAY said, that when this subject was discussed formerly, he

had been prepared to make some observations on it, but the floor being

sufficiently occupied, he had declined rising, and had intended to have

done so now, but for reasons which he would mention.

On the former discussion, the embargo was declared to be

unconstitutional. It was boldly asserted that the Government was not

authorized to lay an embargo, &c. He was indeed astonished to hear

such an assertion, especially coming from the quarter it did. He had

apprehended, however, that on that occasion it had been so ably refuted

by others that it would not be introduced again; but it having been again

introduced to-day, and the proposed transfer of the power of suspending

the operation on the embargo to the President objected to on the same

ground, he claimed the attention of the committee for a short time. His

object was to state the observations he had early made on this subject

and the precedents that existed. In doing so, he would not follow

gentlemen’s arguments, on the other side, in detail, but would state

facts and draw some very concise conclusions. In doing this, he would

confine himself to proving the constitutional authority of Congress to

lay an embargo, and the constitutionality and expediency of the proposed

transfer of the provisional suspending power to the Executive and the

expediency of the measure.

From the arguments which had been offered on this subject, he was induced

to suspect that gentlemen differed in opinion about the meaning of the

word _embargo_. He understood an embargo to be a stopping of trade

generally, or of any article of trade or commerce, either by land or

water; this he said was the definition of that term, such as he found

it in the best authorities; but if there could be any reasonable doubt

of laying embargoes being included in the power of regulating commerce,

which he thought there could not, it was clearly deducible from other

powers taken in connection with this. Here be read and applied the

power to provide for the common defence and general welfare of the

United States, and the power to make all laws which shall be necessary

and proper for carrying into execution the foregoing powers, &c. He said

he agreed with gentlemen on the other side, that this only authorized

Congress to carry into effect the powers therein before enumerated, and

vested no new power in Congress, but demonstrated beyond a doubt that

Congress had power to apply these regulations of commerce to an embargo,

if in their opinion it was necessary for the common defence and general

welfare of the United States. He said that considering an embargo as

incidental, or necessary, either as a substitute of prevention or aid

in prosecuting war, the power was beyond dispute; but on this he would

not enlarge, it being sufficiently evident otherwise, but he would, by

stating the exercise of that power heretofore, illustrate the subject.

That Congress, by the constitution, are the official interpreters of

that instrument, as far as it relates to legislative power, must be

admitted by all, and has never been denied by any. No other authority

can interfere with the exercise of this power, even admitting the power

of the judiciary to decide on the constitutionality of laws to the

most extravagant extent that ever has been suggested. Yet even on that

ground the legislative construction must be held good till a court of

justice has decided otherwise. Embargoes have been frequently laid, and

no measure can possibly afford more evident or more numerous cases for

bringing the constitutionality of the law before a court of justice, but

though counsel has been employed in embargo cases, yet none has ever

questioned the authority of the law as unconstitutional.

In 1794, three embargoes were authorized by Congress, two of them were in

full operation during the period prescribed. No doubt the circumstances

were different then from what they are now; but circumstances relate to

the expediency of the measure, not to the authority of the Legislature.

This affords three precedents of the exercise of the constitutional

authority of laying an embargo. Numerous other instances may be given.

He had already stated that every stoppage of any usual trade by law was

an embargo, for less or more did not change the principle. The Congress

which met in 1793, stopped the exportation of arms and ammunition, that

is to say, laid an embargo on them; he believed this had been done on

other occasions, and these were now included in the embargo. An embargo

had been laid several years on all trade with St. Domingo, which still

continues, and this had till then been a usual and very beneficial trade;

but every prohibition of a usual trade being an embargo to the extent of

the prohibition, it was not necessary to enumerate them all. He would

only add, that at the last session of Congress a law was enacted for

laying a complete embargo on the slave trade, a trade which had been

carried on between Africa and the British colonies, now United States,

without legal interruption, for more than two hundred years, but though

that embargo was laid without limitation of time, it might be repealed.

The first embargo laid by Congress was soon after the constitution had

undergone a critical and severe scrutiny in every State in the Union, not

only by the press, but by the State conventions, a member of one of which

he had been, and had assisted in examining it, not with the most delicate

hand; but neither that convention nor any other, it was believed,

censured the transfer of the power of laying an embargo to the General

Government, nor challenged the want of it, nor moved to have it excepted

out of the general powers of regulating commerce, as the power of taxing

exports had been. The third Congress was also in a considerable degree

composed of such as had not long before been members of the General or

State conventions, or both. Such was the President, WASHINGTON, who

recommended the first embargo, and he was no mean judge of the extent of

the constitutional powers. Almost every Congress since that period had

exercised the same power in a greater or lesser degree. He admitted that

this Congress had an equal right to judge of the extent of the powers

granted by the constitution as any former Congress, but they possessed no

superior advantages to enable them to judge more correctly.

The constitutionality of the embargo being demonstrated, the direct

question before the committee was, are we not constrained by the

constitution, or at least by the nature of the Government, from

transferring the power of suspending its operation, on any terms, to the

President, and is it expedient to do so? Mr. F. said the first was a

question of some delicacy, about which good men might very much differ;

the constitution, however, was silent on the subject, and theory, by

some called the spirit of the Government, such as that it consists of

three separate and distinct branches, could never be perfectly carried

into effect, but only in a limited degree. This was demonstrated by

all the American constitutions and by the experience and practice of

all other Governments. The common theory, that though Executive power

may be transferred, legislative power cannot, has also its limitation

in practice; these theories are good general rules, but like all other

general rules they have their exceptions in practice. He admitted, with

the gentleman from Maryland, (Mr. KEY,) that suspending or changing the

embargo, as it changed the rule of conduct, was a legislative act, but

not in the full sense of that term. If Congress were to adjourn leaving

the embargo as it is, in full operation, and the President during

the recess was to suspend or change it, solely by his own authority,

this would be an assumption of legislative authority, and a complete

legislative act, in opposition to which the gentleman’s arguments would

apply with great force, but they do not apply against the transfer

proposed in the bill. In the bill before the committee, Congress express

its will that the embargo should be suspended as soon as the causes from

which it originated ceases, or modified in its operations agreeably to

the change of those causes over which we have no control. These changes

depending wholly on the will of the belligerent powers, it impossible for

Congress to prescribe the contingencies that may produce these changes,

so it impossible to prescribe the specific contingencies on which it

would be proper to modify or suspend the embargo; therefore it is only

the power of applying the law to cases which are yet uncertain that

is proposed to be transferred to the President. This is not strictly

transferring a legislative power, but a latitude of discretion in the

execution of the law, a latitude which arises solely from the nature and

necessity of the case, and must be justified from that necessity.

Passing other examples in our own administration that might be mentioned,

he would introduce one precedent that applied completely to the case.

In 1794, after the British orders of November, 1793, the execution of

which had induced President Washington to recommend an embargo, had been

restrained, and after it was discovered that the embargo distressed

other nations against whom it was not intended to operate, and after

negotiation was determined on, the embargo which had existed sixty

days, was dropped, even while some of the first commercial cities were

petitioning for its continuance, and none for its removal; but a law

was passed which authorized the President, at his discretion--[Here

Mr. F. read the law]--it authorized the President to lay, to regulate,

and to raise an embargo, as, during the recess of Congress, he, in his

discretion, should judge expedient. By this law he was authorized to

apply the embargo to ships of all nations, or to our own only; by the

bill before us, no power is given to lay an embargo, but only to suspend

the operation of that already laid; and that law, from the Journals,

appears to have passed unanimously. He said that he recollected well,

that he himself voted for it on the principles which he just mentioned.

There had been a difference of opinion about the expediency of laying

an embargo when it was recommended. Some were apprehensive that it

would lead to actual war, and all the alarms of the distress and ruin

to be occasioned by it, were displayed with shut doors, as well on that

occasion as this, but not so perseveringly; such, however, was the

different spirit of party between that time and this, that to prevent the

impression going abroad that we were a divided people, the minority did

not call the yeas and nays on any of the questions respecting it; indeed,

party spirit had not then assumed the same form it has done since, nor

the same temper.

Mr. ROWAN.--The pressure and weight of the embargo should not have

influence in deciding this question. It seems that the feelings of

gentlemen are interested in it. The gentleman from Massachusetts wishes

to be relieved from it. As you regard civil liberty and the rights of

individuals, take it off before you go, sit till you will take it off,

or go away and come back to do it. Do not be influenced by sympathy

for the people suffering under the pressure of the embargo to make a

sacrifice of the rights of these very people under color of sympathy for

whom you are about to pursue this course. These evils may not be the

immediate consequence of this course, but you are not less responsible

for it from the remoteness of its consequence. We are answerable for

all the proceedings of future Legislatures upon this precedent. That

is the misfortune of it. We cannot see what consequences are attached

to it. It may be improved upon by our successors further and further,

till it is impossible for them to retrace their steps; and it is in

that point of view that I am strongly opposed to the vestiture of this

power. Is it possible that, in this early state of our Government, this

thing should be deliberately done? We know very well the popularity of

our first President, when the first precedent of this kind was set. It

is unfortunate for the happiness and well-being of society, that there

sometimes are men whose opinions have such a weight as to overturn

deliberation. We need no longer deem so extravagant the custom of

ostracism, which banished every man whose popularity and influence was

too great. Strip this question of men, and resort to the constitution,

and it will be impossible to sustain the bill. Even its advocates do not

deny that it is unconstitutional. It is not to be found in the fountain

of our power; they go back to precedent for authority to pass it, and the

resort to precedent is itself one of the strongest arguments against it.

They do not find a specific delegation to us of authority to transfer

our power. The true ground is abandoned, and those materials resorted

to, as a substitute for argument, which have always ruined republican

governments--precedent and feeling. Judgment is silenced by feeling,

and then precedent is called in to aid the overthrow of principle.

Instead of looking into the constitution, and deriving our authority

from the fountain, we agree that others shall have thought for us. Here

are precedents; the persons who formed them were republicans; no doubt

they examined the constitution; we will confide in them, and bottom our

decision on their opinion. The first attribute of freedom is to act for

yourself; and when others think for you, you evince that you are ready to

be governed by them--for, if others think for you, and act for you, you

have little else than vassalage left.

I am opposed to the bill, then, upon principle. I will join heartily

in any constitutional mode of repealing the law. I would say to the

gentlemen who passed the embargo law, “I have no doubt that you meant

to serve the country by passing it; upon you rests the responsibility;

and I will act with you to repeal it in any way which shall be

constitutional.”

There is a provision in this bill which is more dangerous still. It not

only belongs to Congress to regulate commerce, but to declare war. Pass

this bill, and the Executive has it in his power to declare war--for he

is to take off the embargo when, in his judgment, the interests of the

nation require it; and then, under such restrictions as his judgment

shall dictate, determine with which of the powers of Europe he will go

to war, or whether with both--for he may so exercise the power which

you shall give him as not to leave it optional in the nation whether

it will declare war or not. Our honor may be assailed in such a manner

in consequence of it, as not to leave us at liberty to inquire whether

properly or not. The power, if given at all, should be confined to a

total repeal, and not put it in the power of the President to say with

whom we shall be embroiled. How do gentlemen reason? I have not heard

any reasoning, though I have heard it said, and, no doubt, a course of

reasoning might have served to prove it, that this bill only confers

Executive power. What did Congress more when they laid the embargo

than that which they now authorize the Executive to do--to legislate

upon existing circumstances and probable events? He is to exercise his

judgment, whether the embargo shall be suspended upon ratification of a

treaty of peace, suspension of hostilities, &c., and the modification

of the suspension rests with him. If this be not legislation, I am at a

loss to know what is. Enforcing a law constitutes an Executive duty; but

not exercising a judgment upon the circumstances which form the basis of

a law, and then acting upon it. The Executive cannot combine in himself

two powers which the constitution declares shall be forever separate.

Reason and the constitution direct that the Executive and legislative

departments shall be kept separate and distinct.

Being young in legislation, I may learn to repose upon the opinion of

others, and not be governed by own interpretation of the constitution;

I have not as yet, however, learned it, and must be governed by my own

understanding.

Mr. LYON moved that the committee now rise. Negatived--58 to 13.

The question was then taken on Mr. RANDOLPH’s amendment, and

negatived--ayes 14.

Mr. LEWIS moved to amend the bill so as to repeal the embargo from and

after the passing of this bill.

Mr. RANDOLPH said that this motion of his colleague’s went pretty

directly to the root of the evil. There had been a variety of

propositions before the committee. For myself, I have no hesitation

in saying, that if we must grant a discretion to the President of the

United States, I should wish that discretion, so far as it relates

to the suspension of the embargo, to be as ample as possible; for,

if the constitution is to be violated, the greatest good attending

that violation should flow from it, if indeed good can flow from the

violation of the constitution. But I think that benefits have flowed

from constitutional violations, and why should they not again? Our body

politic is not of so tender a nature as to die outright even of so

violent an assault as this; there are stamina in it which will ultimately

restore it to its wonted vigor. I understand that the gentleman from

Virginia who makes this motion, does it from the apprehension that an

idea will go forth that he is not in favor of raising the embargo,

although he voted against it originally. I conceived it impossible

that such an idea should go forth. Is it possible that those who voted

against laying the embargo can now be insensible to its pressure? What

is the operation of the embargo, and what will be the operation of this

confidence which we are about to repose in the Executive of the United

States? Why, when the embargo was laid, there were those who made money

on it, because they got earlier intelligence of it than their fellow

citizens; and now, when the embargo is in operation, there are those who

do not suffer under it. I have it from good information, that at least

100,000 barrels of flour have been shipped from Baltimore alone since it

was laid. It may be recollected, that the gentleman from Maryland, who,

the other day, gave us so able an illustration of the question, urged as

an argument against it, that the embargo operated unequally. I should be

sorry to put myself on a par with that gentleman in any knowledge, much

less could I assume to possess a better knowledge of his own district

than he himself possesses; but I believe it has been said by a gentleman

said to be possessed of commercial knowledge, that many thousand barrels

of flour had been shipped from that gentleman’s district alone through

Baltimore. I was in hopes that this reply would have been made before,

because, coming from the quarter whence it must have come, it would

have operated as an argument to estimate the value of this measure on

the West India Islands; and it is evident, that nothing but an evasion

of this kind would keep up the price, low as it is--for, when I single

out Baltimore, I have no doubt the same game is going on elsewhere--at

Eastern Point and Passamaquoddy particularly. The operation of the

embargo is to furnish rogues with an opportunity of getting rich at the

expense of honest men. The man who is hardy enough to give bond and leave

his security in the lurch, can make great returns; whereas the honest

merchant and planter are suffering at home, and bearing the burden. It is

for the benefit of the dishonest trader--for the planter is out of the

question, as he cannot be a partner in the act which contravenes the law

of the land. Is this all the operation of the embargo? No; for I will

tell you another operation it has; that while the sheriff is hunting the

citizen from bailiwick to bailiwick with a writ, his produce lying on

his hands worth nothing, your shaving gentry--accommodation men, five

per cent. per month men--are making fifty or sixty per cent. by usury;

or making still more by usury of a worse sort--buying the property of

their neighbor at less than one-half its value: and well they may afford

to appropriate their money to such profitable uses, supposing character,

morals, religion, honor, and every thing dear to man, trodden under foot

by Mammon. Are these alone the effects which result from the embargo? No,

sir; you are teaching your merchants, on whose fidelity, on whose sacred

observation of an oath, when the course of events returns to its natural

channel, your whole revenue depends; you are putting them to school, and

must expect to take the consequences of their education. You are, by the

pressure of the embargo, which is almost too strong for human nature,

laying calculations and snares in the way, teaching them to disregard

their oath for the sake of profit; and do you expect your commerce to

return to its natural channel without smuggling? You may take all your

Navy, and gunboats into the bargain, with all which you cannot stop them.

Those men who now export so many barrels of flour from our markets, will

not pay the high duties on wines and groceries when they can avoid it

by evasion of the laws; for they will have learned the art of evading

laws; they will have taken their degrees in the school of the embargo.

This is the necessary result. You lay temptations before them too strong

for their virtue to resist, and then, having cast your daughters into a

brothel, you expect them to come out pure and uncontaminated. It is out

of the question, and I venture to predict that the effect of this measure

upon our imposts and our morals too, sir, will be felt when not one man

in this assembly shall be alive. Every arrival from the West Indies tells

you of the cargoes of flour daily carried in, until it becomes a point of

honor not to tell of one another.

Mr. LEWIS’s amendment was then negatived--ayes 22.

The bill having been reported to the House by the Committee of the Whole,

the House then proceeded to consider it, and several motions made to

amend it, all of which were rejected.

The bill was then ordered to a third reading--ayes 56, noes 27. To-morrow

being named for the day, was lost--yeas 28. It was then ordered to be

read this evening, without a division. And having been read a third time,

The question was then taken (half-past ten) by yeas and nays--yeas 60,

nays 36, as follows:

YEAS.--Lemuel J. Alston, Willis Alston, jun., Ezekiel

Bacon, David Bard, Joseph Barker, Burwell Bassett, William

Blackledge, John Blake, junior, Adam Boyd, Robert Brown,

William A. Burwell, William Butler, Joseph Calhoun, George

W. Campbell, Matthew Clay, Howell Cobb, Richard Cutts, John

Dawson, Josiah Deane, Daniel M. Durell, John W. Eppes, William

Findlay, James Fisk, Peterson Goodwyn, Isaiah L. Green, J.

Heister, James Holland, David Holmes, Daniel Ilsley, Richard

M. Johnson, William Kirkpatrick, John Lambert, Robert Marion,

William McCreery, John Montgomery, Nicholas R. Moore, Jeremiah

Morrow, John Morrow, Thomas Newbold, Thomas Newton, Wilson

C. Nicholas, John Porter, John Pugh, Jacob Richards, Matthias

Richards, Samuel Riker, James Sloan, Dennis Smelt, John Smilie,

Jedediah K. Smith, Henry Southard, Clement Storer, George M.

Troup, James I. Van Allen, Daniel C. Verplanck, Jesse Wharton,

Isaac Wilbour, Alexander Wilson, James Witherell, and Richard

Wynn.

NAYS.--William W. Bibb, Thomas Blount, Epaphroditus Champion,

John Culpepper, Samuel W. Dana, John Davenport, jun., William

Ely, Francis Gardner, James M. Garnett, Charles Goldsborough,

John Harris, William Hoge, John G. Jackson, Walter Jones,

Philip B. Key, Joseph Lewis, junior, Edward Lloyd, Matthew

Lyon, Nathaniel Macon, Josiah Masters, William Milnor, Daniel

Montgomery, jun., Jonathan O. Mosely, Timothy Pitkin, jun.,

Josiah Quincy, John Randolph, John Rhea of Tennessee, John

Rowan, Samuel Smith, Richard Stanford, Lewis B. Sturges,

Samuel Taggart, Benjamin Tallmadge, John Taylor, Abram Trigg,

Archibald Van Horn, Killian K. Van Rensselaer, and David R.

Williams.

Mr. RANDOLPH then moved to strike out of the bill the words “under

certain conditions;” for nothing could be more certain than that the bill

contained no certainty.--Negatived without a division.

_Ordered_, That the Clerk of the House do carry the said bill to the

Senate, and inform them that it has passed the House without amendment.

On motion, the House then adjourned.

WEDNESDAY, April 20.

_Judge Innes._

On motion of Mr. ROWAN, the House took up for consideration the report of

the committee appointed to inquire into the conduct of Harry Innes--56 to

26.

Mr. SMILIE moved that the report be committed to a Committee of the

Whole, with a view to let it lie over until the next session. The select

committee in considering the testimony before them, which consisted

of those documents before the House, had thought they did not contain

sufficient matter on which to ground an impeachment; at the same time

that they felt a disposition to pursue the inquiry if other testimony

could be had, which did not appear possible to be had during the present

session. A postponement of the subject would give an opportunity to

procure testimony _pro_ and _con_.

Mr. ROWAN was opposed to commitment, as he thought it could answer no

purpose but to delay a decision. For himself he was of opinion that the

documents already before the House were abundantly sufficient for the

conviction of Judge Innes; at least sufficient on which to ground an

impeachment. It certainly was not for the interest of the community, if

this man were guilty, that he should be continued in the exercise of his

high authorities longer than could be avoided, and therefore, in justice

to the United States, and to the people of Kentucky, an early decision

should be had.

Mr. R. then took a view of the testimony contained in the report of the

committee of the Legislature of Kentucky in the case of Judge Sebastian,

on which he dwelt at some length, stating more than one fact proved by

it, which he thought would of itself be a sufficient ground for removal

from office of a judge of the United States.

Nothing could be gained, he said, by sending the subject to a committee.

The people of Kentucky were alive to the subject. They had manifested

their anxiety in regard to it, and their attachment to the Union by

sending forward to this body a solemn resolution expressive of their

desire for a full inquiry, and on this subject he thought the zeal of

the State should not outstrip that of the nation. This commitment and

consequent postponement would be a manifest disregard of the act of

an honorable State, to whom the House should not show disrespect. He

concluded by hoping that Kentucky would be permitted to have a judge who

was truly an American; one who could not tamper with the enemies of his

country, and about whom should be such an atmosphere of repulsion as to

prevent him from being selected as a fit object for corruption. Such a

judge as this Kentucky wanted.

Mr. SMILIE said neither his respect for the State of Kentucky, nor yet

any suspicious circumstances, should affect his feelings; he wanted

testimony to satisfy his mind of the guilt of the man. None but legal

testimony could be received on trial for impeachment, and such he wished

to see before he voted for commencing an impeachment. Setting all other

considerations aside, the House had now but four days to sit, and it

would occupy the whole of that time at least to discuss the subject, were

it now to be decided.

Mr. TAYLOR had been one of the select committee, and in the minority

on the report which they agreed upon. Whatever might be the opinion of

the committee, he thought the House were bound, from the respectable

source from which the subject had been presented, to act upon it during

the present session. With respect to the evidence necessary to prove

a misdemeanor, it was not necessary that they should put their finger

on the statute book to find the offence, for common sense would decide

it. A judge of the United States had been dismissed from office for

drunkenness, much less a misdemeanor than conferring with the agent of

a foreign Government for purposes injurious to his country. It was said

that Judge Innes had, instead of being as he ought to have been the

preserver of peace in the community, suffered a foreign agent to make

communications to him, and then to pass quietly out of his jurisdiction.

The House had now ground sufficient to commence a process of impeachment,

for the simple oath of a person saying that he has good cause to believe

such an one guilty of any offence was sufficient ground for a judge to

commence a prosecution against the person accused, and so also good

ground of suspicion was sufficient for the institution of an impeachment

or incipient process in this case. He thought, therefore, that there was

no occasion for commitment, as it was moved with a view to postpone the

subject.

Mr. FISK was averse to a hasty decision on this subject. He was by no

means convinced of the guilt of Judge Innes; for although the Legislature

of a State had declared an opinion on the subject, States as well as

individuals might err, and it did not become this body to found its

decisions on popular prejudice or reports, but to examine impartially.

Mr. F. then went over the evidence contained in Judge Innes’s deposition

in the case of Judge Sebastian. It did not appear, he said, that Judge

Innes had personal knowledge of the facts which he stated in his

deposition, but from common report, for they were notorious in Kentucky,

and were known in Massachusetts at the same time. He said he wished, as

much as the gentleman from Kentucky, to see our judicial springs pure;

but he wished not to oppress when there was no hope of conviction, nor to

harass when there was no hope of punishing.

MONDAY, April 25.

_General Wilkinson._

Mr. CLARK said it would be recollected by the House, that he had some

time since been directed to make a statement in relation to General

Wilkinson. He now held in his hand a correspondence with the Spanish

Government, which he would lay upon the table, as it went to substantiate

the facts contained in that statement.

These papers were read, and consist chiefly of memoranda in the

handwriting of Philip Nolan, and purporting to be instructions from

General Wilkinson to Thomas Power, and of answers from Thomas Power.

Mr. RANDOLPH moved that they be printed.

Mr. SMILIE opposed the printing, as, if it were indeed testimony, this

House was not the tribunal to decide upon it.

Mr. RANDOLPH said it was certain, that from the noise in the House,

or some other cause, the papers as read could not be understood. They

appeared to embrace a correspondence of Philip Nolan, said to be the

agent of General Wilkinson, with Power, and in the course of them there

was a recommendation that General W.’s handwriting should not be used. He

presumed that gentlemen felt more interested in these than in the papers

every day laid on their table and printed.

Mr. SMILIE said they had had enough of this business of denunciation, and

he wished no more of it. He was willing that the papers should be sent to

the court of inquiry, but he would go no further.

Mr. RANDOLPH called for the yeas and nays on the motion for printing.

Mr. RHEA supported the motion for printing.

The question was then taken by yeas and nays on printing, and carried, 52

to 30.

On motion of Mr. KELLY,

_Resolved_, That the papers and information relative to the

conduct of General James Wilkinson, which have been this

day communicated to this House by DANIEL CLARK, Esq., be

transmitted to the President of the United States.

_Five o’clock, P. M._

_Non-Importation._

The bill from the Senate to authorize the President, under certain

contingencies, to suspend the non-importation law, having been called up,

and a motion having been made to postpone it indefinitely,

Mr. NEWTON begged the House to consider one moment before they postponed

this bill. They had already passed a law authorizing the President of the

United States to suspend the operation of the embargo law, in the event

of a general peace, or such accommodation to neutrals as should render

the commerce of the United States safe. Now, in the event of that law

being suspended, it might also be proper to suspend this.

Mr. NELSON said he should never vote for the repeal or suspension of

this law. He hoped to see the time when it should become a permanent

regulation; he would not yield to any of the powers of Europe, and he

wished to be independent of them. There were many things now imported

from Europe which could as well be made in our own country. If they could

be as well made, he considered it sound policy to give a preference

to our own manufactures, and so far to prohibit theirs as to effect a

preference of our own. Whether in this principle I am right or wrong,

said he, I am certainly right in this: That at this late period of

the session it is impossible to discuss such a question as this, and

therefore I wish the motion to prevail.

Mr. BURWELL said he would add but a single observation to those of

the gentlemen just sat down. He was in favor of postponing the bill

indefinitely, because he wished it to be understood that we have a right

to make all regulations we please respecting our commerce, or trade, or

aught else, without consulting the dispositions of any power whatever. He

wished it to be understood here and elsewhere, and therefore he was in

favor of postponement of this bill.

Mr. MARION said he was one of those who originally voted for the

non-importation law, and he had never repented his vote; but he voted

for it under a firm persuasion that it would go into operation. It had

been afterwards suspended because there was a negotiation pending and

a prospect of accommodation; but if it were the determination never to

suffer it to go into operation, he had much rather see it repealed. If it

were to be kept in suspension, hung up like a rod _in terrorem_, it would

merit ridicule. What cause could there be for suspending it at present?

Any negotiation pending? He believed not. If it were the understanding

of a majority that the bill should not go into operation, he hoped they

would propose a repeal of it.

Mr. EPPES said it appeared that the question of suspension of the

non-importation act was very different from that of a suspension of

the embargo. The former was a measure of coercion on Great Britain,

and whether it had that effect or not, he believed at the time the

law was passed that the only way which we could operate on that power

was by commercial restrictions; and he felt now free to declare, that

if ample reparation were made for the outrage on the Chesapeake, if

the decrees were withdrawn and every injury redressed, that he would

hold on upon the non-importation act so long as the impressment of our

seamen remained. Whenever you take off this, said he, you have nothing

to enforce your rights as to impressment, nor as to that system of

commercial pillage which has been adopted by Great Britain. We know that

the embargo was imposed as a measure of safety. It was to give us time

to make preparation to meet the event. If the decrees which produced

the embargo are withdrawn, the embargo may be withdrawn with propriety.

But let me ask any gentleman whether he believes that any circumstances

which produced the non-importation act will be removed? Whether they

believe that Great Britain will give up her system of impressing seamen?

If he does, let him look at the course she has adopted. After appointing

a Minister to negotiate with you, she has issued a proclamation,

establishing the right of impressment on its broadest footing. Shortly

after, it was declared by the King, at the opening of Parliament, to be

one of those rights which never could nor ever would be admitted. I was

originally in favor of the non-importation law, and I am still so. If

gentlemen take into consideration all the circumstances which produced

the law, I will venture to say that there is not a man in the House

originally in favor of it who can now vote for its suspension. It has

never yet been fairly in operation. It is now indeed a law of the land,

but its operation is virtually suspended by the embargo. I am in favor of

its going into operation, and never will consent to its suspension till

its intended effect be fulfilled, or the experiment is made.

The question of indefinite postponement was carried--58 to 29.

_Home Manufactures._

Mr. BIBB said, that notwithstanding the difference of opinion which had

taken place occasionally between the members of this House during the

present session, on questions of policy, he was pleased to perceive that

no difference of sentiment existed in regard to the injuries done us by

foreign nations. He believed that but one spirit actuated the people of

the United States--that they were attached to their country, and to their

country alone. He wished not only by professions, but by practice, to

show foreign nations that we can live without them. He therefore offered

the following resolution:

_Resolved_, That the members of the House of Representatives

will appear at their next meeting clothed in the manufactures

of their own country.

Mr. MACON would never agree to a resolution which they could not enforce.

Congress have nothing to do with this subject. He could not conceive what

effect this resolution could have. If it was intended as a pledge, he was

not willing to give it; if to have force, he denied their authority to

enforce it.

Mr. RHEA said, if the House adopted the resolution, he should pay no

regard to it. He would appear in what clothing he chose, this resolution

to the contrary notwithstanding.

Mr. EPPES admitted that the resolution could have no force; it was

intended to express the feelings of the House. He should rejoice to see

every member of the House and every man in the nation, clothed entirely

in the manufactures of this country. It would establish an independence

of the best kind. The proposition was a valuable one, and he wished to

God that the ladies could be placed in a situation to adopt a similar

resolution. If he were to appear in the manufactures of his own State,

he must be confined to a homely garb; but if the resolution passed, he

would, before the next season, have cloth manufactured for his use in his

own family. Mr. E. calculated that a million of men in the United States

wore broadcloth coats, and if they were all manufactured in this country

the saving would be immense.

Mr. MACON did not conceive it fair that those who like him had no wives

at home to make them coats, should not only be reproached for their

misfortune, but pointed at as sinners. He had during this session bought

himself a suit, but he was not able to obtain American manufacture. His

friend from Maryland (Mr. NELSON) had procured him a hat, and that was

all that he could obtain of American manufacture. As to the ladies,

if they were to legislate on the subject he did not believe that the

gentleman from Virginia, (Mr. EPPES,) fond as he is of the ladies,

would persuade one in the House, or in the nation, to agree to such a

resolution. Had I a wife, I should be willing to see her dressed to her

own satisfaction. The ladies have a right to dress as they please, and

he did not care who knew it. The gentleman from Virginia reminded him of

a neighbor who used often to say, O, how rich we might be, if it was not

for the expense of eating and clothing!

Mr. BIBB said he had hoped that the resolution would be at once adopted

unanimously. He did not wish to provoke debate, and therefore withdrew

his resolution.

_Adjournment._

Mr. G. W. CAMPBELL, from the committee appointed on the part of this

House, jointly with a committee appointed on the part of the Senate, to

wait on the President of the United States and inform him of the proposed

adjournment of Congress, reported that the committee had performed that

service, and that the President had signified to them that he had no

further communication to make to Congress during the present session.

A message from the Senate informed the House that the Senate, having

completed the legislative business before them, are now ready to adjourn.

_Ordered_, That a message be sent to the Senate to acquaint them that

this House, having finished the business before them, are now about to

adjourn until the day appointed by law for the next meeting of Congress;

and that the Clerk of this House do go with the said message.

The Clerk accordingly went with the said message, and, being returned,

Mr. SPEAKER adjourned the House until the first Monday in November next.