The same sumptuary rule applied to Louisiana. “You know I have been averse to letting Atlantic flour go to New Orleans merely that they may have the whitest bread possible.”[217]
The President seemed alone to feel this passionate earnestness on behalf of the embargo. His Cabinet looked on with alarm and disgust. Madison took no share in the task of enforcement. Robert Smith sent frigates and gunboats hither and thither, but made no concealment of his feelings. “Most fervently,” he wrote to Gallatin, “ought we to pray to be relieved from the various embarrassments of this said embargo. Upon it there will in some of the States, in the course of the next two months, assuredly be engendered monsters. Would that we could be placed on proper ground for calling in this mischief-making busy-body.”[218] Smith talked freely, while Gallatin, whose opinion was probably the same, said little, and labored to carry out the law, but seemed at times disposed to press on the President’s attention the deformities of his favorite monster.
“I am perfectly satisfied,” wrote Gallatin to the President July 29,[219] “that if the embargo must be persisted in any longer, two principles must necessarily be adopted in order to make it sufficient: First, that not a single vessel shall be permitted to move without the special permission of the Executive; Second, that the collectors be invested with the general power of seizing property anywhere, and taking the rudders, or otherwise effectually preventing the departure of any vessel in harbor, though ostensibly intended to remain there,—and that without being liable to personal suits. I am sensible that such arbitrary powers are equally dangerous and odious; but a restrictive measure of the nature of the embargo, applied to a nation under such circumstances as the United States, cannot be enforced without the assistance of means as strong as the measure itself. To that legal authority to prevent, seize, and detain, must be added a sufficient physical force to carry it into effect; and although I believe that in our seaports little difficulty would be encountered, we must have a little army along the Lakes and British lines generally.... That in the present situation of the world every effort should be attempted to preserve the peace of this nation, cannot be doubted; but if the criminal party-rage of Federalists and Tories shall have so far succeeded as to defeat our endeavors to obtain that object by the only measure that could possibly have effected it, we must submit and prepare for war.”
“I mean generally to express an opinion,” continued the secretary, “founded on the experience of this summer, that Congress must either invest the Executive with the most arbitrary powers and sufficient force to carry the embargo into effect, or give it up altogether.” That Jefferson should permit a member of his Cabinet to suggest the assumption of “the most arbitrary powers;” that he should tolerate the idea of using means “equally dangerous and odious,”—seemed incredible; but his reply showed no sign of offence. He instantly responded,—
“I am satisfied with you that if Orders and Decrees are not repealed, and a continuance of the embargo is preferred to war (which sentiment is universal here), Congress must legalize all means which may be necessary to obtain its end.”[220]
If repeated and menacing warnings from the people, the State authorities, and officers of the national government failed to produce an impression on the President’s mind, he was little likely to regard what came from the Judiciary; yet the sharpest of his irritations was caused by a judge whom he had himself, in 1804, placed on the Supreme Bench to counteract Marshall’s influence. Some merchants of Charleston, with consent of the collector and district-attorney, applied for a mandamus to oblige the collector of that town to clear certain ships for Baltimore. The collector admitted that he believed the voyage to be intended in good faith, and that under the Embargo Law he had no right of detention; but he laid Secretary Gallatin’s instructions before the court. The case was submitted without argument, and Justice William Johnson, of the South Carolina circuit,—a native of South Carolina, and a warm friend of the President,—decided that the Act of Congress did not warrant detention, and that without the sanction of law the collector was not justified by instructions from the Executive in increasing the restraints upon commerce. The mandamus issued.
These proceedings troubled but did not check the President. “I saw them with great concern,” he wrote to the governor of South Carolina,[221] “because of the quarter from whence they came, and where they could not be ascribed to any political waywardness.” Rodney, the attorney-general, undertook to overrule Justice Johnson’s law, and wrote, under the President’s instructions, an official opinion that the court had no power to issue a mandamus in such a case. This opinion was published in the newspapers at the end of July, “an act unprecedented in the history of executive conduct,” which in a manner forced Justice Johnson into a newspaper controversy. The Judge’s defence of his course was temperate and apparently convincing to himself, although five years afterward he delivered an opinion[222] of the whole Supreme Court in a similar case, “unquestionably inconsistent” with his embargo decision, which he then placed on technical ground. He never regained Jefferson’s confidence; and so effective was the ban that in the following month of December the Georgia grand-jury, in his own circuit, made him the object of a presentment for “improper interference with the Executive.”
If the conduct of Justice Johnson only stimulated the President’s exercise of power, the constitutional arguments of Federalist lawyers and judges were unlikely to have any better effect; yet to a Virginia Republican of 1798 no question could have deeper interest than that of the constitutionality of the embargo. The subject had already been discussed in Congress, and had called out a difference of opinion. There, Randolph argued against the constitutionality in a speech never reported, which turned on the distinction between regulating commerce and destroying it; between a restriction limited in time and scope, and an interdict absolute and permanent. The opponents of the embargo system, both Federalists and Republicans, took the same ground. The Constitution, they said, empowered Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;” but no one ever supposed it to grant Congress the power “to prohibit commerce with foreign nations, and among the several States, and with the Indian tribes.” Had such words been employed, the Constitution could not have gained the vote of a single State.
History has nothing to do with law except to record the development of legal principles. The question whether the embargo was or was not Constitutional depended for an answer on the decision of Congress, President, and Judiciary, and the assent of the States. Whatever unanimous decision these political bodies might make, no matter how extravagant, was law until it should be reversed. No theory could control the meaning of the Constitution; but the relation between facts and theories was a political matter, and between the embargo and the old Virginia theory of the Constitution no relation could be imagined. Whatever else was doubtful, no one could doubt that under the doctrine of State-rights and the rules of strict construction the embargo was unconstitutional. Only by the widest theories of liberal construction could its constitutionality be sustained.
The arguments in its favor were arguments which had been once regarded as fatal to public liberty. The first was made by Richard M. Johnson of Kentucky: “If we have power to lay an embargo for one day, have we not the power to renew it at the end of that day? If for sixty days, have we not the power to renew it again? Would it not amount to the same thing? If we pass a law to expire within a limited term, we may renew it at the end of that term; and there is no difference between a power to do this, and a power to pass laws without specified limit.”[223] This principle, if sound, might be applied to the right of habeas corpus or of free speech, to the protection of American manufactures or to the issue of paper money as a legal tender; and whenever such application should be made, the Union must submit to take its chance of the consequences sure to follow the removal of specified limits to power. Another argument was used by David R. Williams, a representative South Carolinian. “The embargo is not an annihilation but a suspension of commerce,” he urged,[224] “to regain the advantages of which it has been robbed.” If Congress had the right to regulate commerce for such a purpose in 1808, South Carolina seemed to have no excuse for questioning, twenty years later, the constitutionality of a protective system. Still another argument was used by George W. Campbell of Tennessee.