“A limited embargo,” he said,[225] “can only mean an embargo that is to terminate at some given time; and the length of time, if a hundred years, will not change the character of the embargo,—it is still limited. If it be constitutional to lay it for one day, it must be equally so to lay it for ten days or a hundred days or as many years,—it would still be a limited embargo; and no one will, I presume, deny that an embargo laid for such a length of time, and one laid without limitation, would in reality and to all practical purposes be the same.”
This reasoning was supported by an immense majority in both Houses of Congress; was accepted as sound by the Executive, and roused no protest from the legislature of any Southern State. So far as concerned all these high political authorities, the principle was thus settled that the Constitution, under the power to regulate commerce, conferred upon Congress the power to suspend foreign commerce forever; to suspend or otherwise regulate domestic and inter-state commerce; to subject all industry to governmental control, if such interference in the opinion of Congress was necessary or proper for carrying out its purpose; and finally, to vest in the President discretionary power to execute or to suspend the system, in whole or in part.
The Judiciary had still to be consulted. In the September Term, 1808, an embargo case was argued at Salem before John Davis, judge of the District Court for Massachusetts; and Samuel Dexter, the ablest lawyer in New England, urged the constitutional objections to the embargo with all the force that ability and conviction could give. No sounder Federalist than Judge Davis sat on the bench; but although the newspapers of his party were declaiming against the constitutionality of the law, and although Chief-Justice Parsons, of the Massachusetts Supreme Court, the most eminent legal authority in the State, lent his private influence on the same side, Judge Davis calmly laid down the old Federalist rule of broad construction. His opinion, elaborately argued and illustrated, was printed in every newspaper.
“Stress has been laid in argument,” he said, “on the word ‘regulate,’ as implying in itself a limitation. Power to ‘regulate,’ it is said, cannot be understood to give a power to annihilate. To this it may be replied that the Acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree or extent of the prohibition be adjusted but by the discretion of the national government, to whom the subject appears to be committed.”
In the Federalist spirit the Judge invoked the “necessary and proper” clause, which had been the cloak for every assumption of doubtful powers; and then passed to the doctrine of “inherent sovereignty,” the radical line of division between the party of President Washington and that of President Jefferson:—
“Further, the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but the national right or power to adapt regulations of commerce to other purposes than the mere advancement of commerce appears to me unquestionable.”
After drawing these conclusions from the power to regulate commerce, the Judge went a step further, and summoned to his aid the spirits which haunted the dreams of every true Republican,—the power of war, and necessity of State:—
“Congress has power to declare war. It of course has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. Foreign intercourse becomes in such times a subject of peculiar interest, and its regulation forms an obvious and essential branch of federal administration.... It seems to have been admitted in the argument that State necessity might justify a limited embargo, or suspension of all foreign commerce; but if Congress have the power, for purposes of safety, of preparation, or counteraction, to suspend commercial intercourse with foreign nations, where do we find them limited as to the duration more than as to the manner and extent of the measure?”
Against this remarkable decision Dexter did not venture to appeal. Strong as his own convictions were, he knew the character of Chief-Justice Marshall’s law too well to hope for success at Washington. One of Marshall’s earliest constitutional decisions had deduced from the power of Congress to pay debts the right for government to assume a preference over all other creditors in satisfying its claims on the assets of a bankrupt.[226] Constructive power could hardly go further; and the habit of mind which led to such a conclusion would hardly shrink from sustaining Judge Davis’s law.
Yet the embargo, in spite of Executive, Legislative, Judicial, and State authorities, rankled in the side of the Constitution. Even Joseph Story, though in after life a convert to Marshall’s doctrines, could never wholly reconcile himself to the legislation of 1808.