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.