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.