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 thethrone, 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.Keythen 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 willfind 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 lawad libitumwhen 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.Hollandsaid, 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.Findlaysaid, 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 wordembargo. 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 withthis. 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’sarguments 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.â€
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.Lyonmoved that the committee now rise. Negatived—58 to 13.
The question was then taken on Mr.Randolph’s amendment, and negatived—ayes 14.
Mr.Lewismoved to amend the bill so as to repeal the embargo from and after the passing of this bill.
Mr.Randolphsaid 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 monthmen—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.
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.Randolphthen 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.
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.Smiliemoved 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 testimonyproandcon.
Mr.Rowanwas 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 JudgeSebastian, 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.Smiliesaid 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.Taylorhad 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.Fiskwas 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.
Mr.Clarksaid 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.Randolphmoved that they be printed.
Mr.Smilieopposed the printing, as, if it were indeed testimony, this House was not the tribunal to decide upon it.
Mr.Randolphsaid 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.Smiliesaid 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.Randolphcalled for the yeas and nays on the motion for printing.
Mr.Rheasupported 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 byDaniel Clark, Esq., be transmitted to the President of the United States.
Resolved, That the papers and information relative to the conduct of General James Wilkinson, which have been this day communicated to this House byDaniel Clark, Esq., be transmitted to the President of the United States.
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.Newtonbegged 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.Nelsonsaid 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.Burwellsaid 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.Marionsaid 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 rodin 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.Eppessaid 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.
Mr.Bibbsaid, 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 withoutthem. He therefore offered the following resolution: