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"That the collectors of all the districts of the United States, shall and they are hereby authorized to take into their custody specie or any articles of domestic growth, produce, or manufacture, when there is reason to believe that they are intended for exportation, or when in vessels, carts, wagons, sleighs, or any other carriage, or in any manner apparently on their way toward the territories of a foreign nation, or the vicinity thereof, or toward a place whence such articles are intended to be exported; and not to permit such articles to be removed until bond with sufficient sureties shall have been given for the landing or delivery of the same in some place of the United States, whence, in the opinion of the collector, there shall not be any danger of such articles being exported."

The objection is, that it violates the fourth article of the amendments to the Constitution; that article is in the following words:

"ART. 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If this section, or any other, violated this or any other article, word, or letter of the Constitution, the bill would drop unsupported from my hands. The only question which arises between this section and the fourth article of the Constitution is, whether the seizures here authorized are reasonable or unreasonable? I believe that every person will conclude that when property is intended to be used to violate the laws of the United States, and to accommodate their enemies, that it ought to be seized, and the object of its owner prevented; such seizure, therefore, cannot be deemed unreasonable, and of course not unconstitutional: as to searching, there is no power whatever in the section given to enter into houses, nor to search them, either with or without a warrant, neither in the day, nor in the night time, and of course the clause respecting searches, can in no respect whatever apply to this section. Seizures, under less imperious circumstances, are justified by all your revenue laws, &c., and as one case in point among others, I would beg to read an extract from the fourth volume of laws, section 69., page 389:

An Act to regulate the collection of duties on imports and tonnage.

"SEC. 68. That every collector, naval officer, and surveyor, or other persons specially appointed by either of them for that purpose, shall have full power and authority to enter any ship or vessel, in which they shall have reason to suspect any goods, wares, or merchandise, subject to duty, are concealed, and therein to search for, seize, and secure any such goods, wares, or merchandise," &c.

I have never heard of any complaint from this mode of proceeding in collecting the revenue, and there certainly ought to be none against a similar provision for enforcing a due observance of the embargo laws.

It is said this section violates the fifth article of the amendments to the Constitution. The

DECEMBER, 1808.

mere reading of this article will be sufficient to show that it has not the remotest reference to any part of this section in question. It is in the following words:

"No person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

No private property is proposed by this section to be taken for public use, either with or without compensation, but merely that it should be held for the owner until he should give security that he would not thereby violate the law. I beg leave to refer to a case in point to justify this provision. It is in the sixty-ninth section of the revenue law just read, fourth volume, page 390; the words are as follows:

"Szc. 69. That all goods, wares, and merchandise, which shall be seized by virtue of this act, shall be put into and remain in the custody of the collector, or such other person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required, to ascertain whether the same have been forfeited or not," &c.

The seventieth section of the same act extends the doctrine of seizure for the violation of the law still further. It is in the following words:

"SEC. 70. That it shall be the duty of the several officers of the customs to make seizures of, and secure any ship or vessel, goods, wares, or merchandise, which shall be liable to seizure, by virtue of this or any other act of the United States respecting the revenue, which is now or may hereafter be enacted, as well without as within their respective districts."

The most alarming objections are suggested to be contained in the following clause of the tenth section of the bill:

"SEC. 10. And be it further enacted, That the powers given to the collectors, either by this or any other act respecting the embargo, to detain any vessel, or to take into their custody any articles for the purpose of preventing violations of the embargo, shall be exercised in conformity with such instructions as the President may give, and such general rules as he may prescribe for that purpose, made in pursuance of the powers aforesaid; which instructions and general rules the collectors shall be bound to obey."

This clause merely provides for the transfer of powers previously given to the collectors, to the President, for the purpose of producing, as far as practicable, uniformity and impartiality in their execution. It was hardly to have been expected that ingenuity itself could have found an objection to this provision. But it is said that this clause gives the President's instructions the force of law. It certainly does in relation to the objects to which they are directed and limited. What are these objects? They are incidental occurrences arising in the course of the execution

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of the embargo laws, which can neither be foreseen nor guarded against by legislation in any other way, because they are incapable of definition; this provision relates to events and details not in existence, but which may probably happen; events and details, therefore, incapable of defini

SENATE.

haps gentlemen will be inclined to disrespect this precedent, because it was adopted without the sanction of their votes. I will, therefore, turn their attention to a precedent, sanctioned, I believe, by the unanimous votes of both branches of the Legislature, and certainly by the votes of the

tion, and of course cannot be reached by legisla-gentleman from Connecticut (Mr. HILLHOUSE) tion without the aid of the executive department. and myself, and approved by the then President

This case serves to illustrate the general principles I before laid down respecting the transfer of legislative powers to the executive department. But, sir, as great stress has been laid upon this objection by the opponents of the bill, permit me to examine this doctrine in reference to the preexisting practice of this Government with more minute attention. In this examination it will be found, that, at all times, since its establishment, when it had an object in view which could not be defined, and of course could not be reached by legislation, it has called in the aid of executive discretion for the purpose, sometimes with more, and sometimes with less limitation and restriction. In the first place, let me call attention, sir, to the act of the last session of Congress, to authorize the President to suspend in whole or in part the several embargo laws, in the following

words:

"An Act to authorize the President of the United

States, under certain restrictions, to suspend the operation of the act laying an embargo on all ships and vessels in the ports and harbors of the United States, and the several acts supplementary thereto.

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That, in the event of such peace or suspension of hostilities between the belligerent Powers of Europe, or of such changes in their measures affecting neutral commerce, as may render that of the United States sufficiently safe, in the judgment of the President of the United States, he is hereby authorized, during the recess of Congress, to suspend, in whole or in part, the act laying an embargo on all ships and vessels in the ports and harbors of the United States, and the several acts supplementary thereto, under such exceptions and restrictions, and on such bond and security being given as the public interest and circumstances of the case may appear to require. Provided such suspension shall not extend beyond twenty days after the next meeting of Congress.

"Approved, 22d April, 1808."

(Gen. WASHINGTON.) I allude to an act which
passed the House of Representatives on the 30th
May, 1794, in the following words-approved the
4th June:
"An Act to authorize the President of the United
States to lay, regulate, and revoke embargoes.

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the President of the United States be, and he is hereby, authorized and empowered, whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper. And the President is hereby fully authorized to give all such orders to the officers of the United States, as may be necessary to carry the same into full effect: Provided, The authority aforesaid shall not be exercised while the Congress of the United States shall be

in session, and any embargo, which may be laid by the President as aforesaid, shall cease and determine in fifteen days from the actual meeting of Congress, next after laying the same.

"SEC. 2. And be it further enacted, That this act shall continue and be in force until fifteen days after the commencement of the next session of Congress, and no longer.

"FREDERICK AUGUSTUS MUHLENBERG,
"Speaker of the House of Representatives.
"RALPH IZARD,
"President of the Senate pro tempore.

"Approved, June 4th, 1794.

"GEO. WASHINGTON, "President of the United States."

This act, giving the President the most unqualified powers to lay, regulate, and revoke embargoes, was. I believe, passed unanimously by both Houses of Congress; but as I was unwilling to trust to my recollection upon this point, I have had reference to the Journals of the House of Representatives at that day, for more precise information, and I find the yeas and nays were not called for upon the passage of the bill; the strong presumption, therefore, is, that there was no opposition to its passage. The following is the ex

The principle upon which this bill passed, was, that it related to an event not in existence, but which might have occurred during the recess of Congress; and if it had taken place, it would have been all important to the interests of the people, that the suspension of the embargo should take place in consequence of the happening of the contemplated events. Congress, therefore, after extending legislation as far as it could do in defining the circumstances in which the suspension might take place, did not hesitate to trust to executive discretion for making the necessary decisions and arrangements respecting all other circumstances which might occur, but which could not be foreseen; because they depended "Ordered, That the Clerk of this House do carry upon the will of foreign nations, which could nei- the said bill to the Senate, and desire their concurther be anticipated nor controlled. But, sir, per- | rence."

tract from the Journals:

Journal of the House of Representatives of the United
States, 3d Congress, first session, page 376.

"An engrossed bill authorizing the President of the United States, to lay, regulate, and revoke embargoes,

was read the third time.

"Resolved, That the said bill do pass, and that the title be, an act to authorize the President of the United States to lay, regulate, and revoke embargoes.

SENATE.

Enforcement of the Embargo.

I also find, from the further inspection of the Journals of that day, that very little ceremony was used in laying embargoes; it was then done by resolutions, without even the formality of a bill, and the President authorized to give all the necessary instructions for carrying it into effect, even during the session of Congress. The following is the original resolution for laying an embargo:

Journal of third Congress, first session, pages 216-17. "Resolved by the Senate and House of Representatives, &c., That an embargo be laid on all ships and vessels in the ports of the United States bound to any foreign port or place, for the term of thirty days, and that no clearance be furnished during that time to

any ship or vessel bound to such foreign port or place, except ships or vessels under the immediate directions of the President of the United States; and that the President of the United States be authorized to give such instructions to the revenue officers of the United States as shall appear best adapted for carrying the said resolution into full effect.

"Approved, 26th March, 1794."

I find, also, upon a further examination of the Journals, that sundry memorials from the merchants were presented for the continuation of the embargo, and among others, one from the inhabitants of the town of Salem, as appears from the following extract:

Journal of third Congress, first session, page 339. "A memorial of the inhabitants of the town of Salem, in the State of Massachusetts, was presented to the House and read, praying a further continuation of the embargo laid on ships or vessels in the United States, bound to any foreign port or place."

DECEMBER, 1808.

ing of the event, might be indispensable to the common defence and general welfare.

At that time the nation acted from a just sense of its own interest and honor. It was considered as the cause of this nation, against a foreign nation. It was, then, the irresistible effort of an undivided nation. It must be admitted by all, that the British Orders of 1793, did not present to us the dangers and difficulties resulting from the combined influence of the British Orders and

French Decrees of the present day. Whence, then, this sad reverse in our public councils? Whence, then, these unfortunate and alarming internal divisions? These evils can only be ascribed to party spirit. Fortunately at that day, the United States were not distracted and torn

asunder by party spirit. Unfortunately, at the present day, this baneful influence seems to have become so inveterate, so lost to its own interest and honor, as to be willing to seek a temporary and ruinous protection under foreign aggressors, rather than to unite in any measures to resist and repel their aggressions.

Gentlemen have even gone so far as to object to the clause for the protection of the public officers from vexatious suits for the discharge of their duties. It is believed that this provision is not only correct in itself, but that it exists in the laws

of the several States and in the laws of the Union; the only reply, therefore, that I shall make to this suggestion, will consist in reading the clause objected to in this bill, and a similar clause in the existing laws:

Extract from the bill.

"And if any action or suit be brought against any collector, or other person, acting under the direction of and in pursuance of this act, he may plead the general issue, and give this act and the instructions and regulations of the President in evidence for his justification and defence."

I have read these proceedings to show that the same terrific alarms, respecting embargoes, were not circulated through the country in the year 1794, which now are, because there were then no objects for such an excitement. The history of those times will also show the principle upon which Congress gave to the President unlimited powers to lay embargoes, at his discretion, during their recess. It is known that, in consequence of the British hostile orders against our commerce in 1793, during the session of 1794, Mr. Jay was sent to London to demand redress from the British Government for the injuries done to our commerce under those orders, and to make an amicable adjustment of all the differences between the two countries. It was believed by Congress that if the mission did not succeed, war might probably be the consequence of its failure, and as the result would probably be known during the recess, Congress did not hesitate to give to the President full power to protect our commerce and seamen by an embargo, from the dangers to which both would have been exposed in the event of a war with Great Britain. Upon what principle was this unlimited power given? Why, simply upon this, that the event, upon which its exercise was to depend, was not in existence, but might possibly exist, and, therefore, was incapable of definition, or, in other words, of legislation; and yet the exercise of the power in case of the happen-ation of the United States at this moment as it

Extract from one of the existing laws. "SEC. 71. That if any officer, or other person, executing or aiding or assisting in the seizure of goods, shall be sued or molested for anything done in virtue of the powers given by this act, or by virtue of a warrant granted by any judge or justice, pursuant to law, such officer, or other person, may plead the general issue, and give this act and the special matter in evidence; and if in such suit the plaintiff is nonsuited, or judgment pass against him, the plaintiff shall recover double costs; and in actions, suits, or informations to be brought, where any seizure shall be made, pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall be upon

such claimant."

The gentleman from Connecticut, (Mr. GooDRICH,) not content with finding fault with the provisions of the bill, has ventured to give it a general character. He has ventured to call it a "military despotism." This, surely, would be a most alarming mark to stamp on the forehead of this bill. If true, the bill would certainly be left without an advocate. But, sir, before I enter into an examination of this harsh and uncharitable suggestion, permit me to ask what is the situDECEMBER, 1808.

Enforcement of the Embargo.

SENATE.

respects peace or war? It can hardly be said that | shall deem necessary, to compel the said armed vessel the United States are at peace, when two bellig- to depart," &c.

erents are making war on them; when some of

the essential attributes of national sovereignty are attempted to be forcibly wrested from them. The most that can be said, if we are at all at peace, is, that it is a peace like war, and, in my judgment, would authorize the adoption of any measure, which would be justified in a state of war. And, in the event of war, are we to expect to meet with little cavils and difficulties of this kind, with every measure which may be proposed for the annoyance of the common enemy? I hope not, sir. If we should, unfortunately, be driven into war after so many patient efforts to avoid it, I hope and trust it will not be a war like a peace; but that the whole energy of the nation will be brought to bear upon the enemy both by land and sea-I hope the war will be vigorous; and in that case, I am sure it will be short and successful. Let me, then, sir, under this exposition of our real situation, examine the terrible suggestion brought against this bill-what is it, which has doomed it to this unwarrantable reproach? The

only section which has the remotest reference to the use of military force, is the eleventh, which is in the following words:

"SEC. 11. And be it further enacted, That it shall be lawful for the President of the United States, or such other person as, he shall have empowered for that purpose, to employ such part of the land and naval forces, or militia of the United States, and of the Territories thereof, as may be deemed necessary, in conformity with the provisions of this act and other acts respecting the embargo, for the purpose of preventing the illegal departure of any ship or vessel, or of detaining, taking possession of, and keeping in custody any ship or vessel, or of taking into custody and guarding any specie or articles of domestic growth, produce, or manufacture, and also for the purpose of preventing and suppressing any armed or riotous assemblage of per

sons resisting the custom-house officers in the exercise of their duties, or in any manner opposing the execuof the laws laying an embargo, or otherwise violating, or assisting and abetting violations of the

tion

same."

It will be found, upon examination. that this section contains no new principle; but, like others which have been objected to, merely applies an old principle to a new object. In justification of this assertion, permit me here to read an extract from an act of Congress, which will be found in the seventh volume of the Laws, page 365, in the following words they will be found to be precisely of the same import with the material words of the section under discussion:

"An Act for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction.

"SEC. 5. And be it, &c., That whensoever any armed vessel of a foreign nation entering the harbors or waters within the jurisdiction of the United States, and required to depart therefrom, shall fail so to do, it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land and naval forces of the United States, or the militia thereof, as he

But, sir, as gentlemen in the opposition may have more respect for a precedent in 1794, which probably received the sanction of the votes of all those then in Congress, I will furnish them with one of that date expressly in point. It is in the following words:

Third volume Laws, page 92. "An Act in addition to the act for the punishment of certain crimes against the United States. Approved the 5th June, 1794.

"SEC. 7. Be it enacted, &c., That in every case in which a vessel shall be fitted out and armed, or attempted so to be fitted out or armed, or in which the force of any vessel of war, cruiser or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot contrary to the prohibitions and provisions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United

States, as above defined, and in every case in which any process issuing out of any court of the United

States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel, of any foreign Prince or State, or of the subjects or citizens of such Prince or State; in every such case it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be judged necessary for the purpose of taking possession of, and detaining any such ship or vessel with her prize or prizes," &c.

In all these cases the principle is precisely the same. It is the application of the physical force of the nation to carry into effect its laws in different forms, according to the different objects to be effected by it.

But, sir, as I know how easy it is to alarm the public sensibility by the suggestion of "a military despotism," without exa examining into its appliI will take the cability to the case in question, I liberty of giving a short history of the proceedings of the Government in relation to this subject.

In the year 1792, shortly after the establishment of the Government, it was foreseen by Congress, that a state of things might exist, which would require the physical force of the nation to be called forth to execute the laws of the Union, suppress insurrections, and repel invasions. At this time, however, no occasion having occurred to render a resort to this remedy necessary, considerable precaution and delicacy were manifested in making the provisions for this object. Accordingly, on the 2d day of May, 1792, a law for this purpose was passed. It is not necessary now to read it, but merely to remark, that it was accompanied with so many precautions, and consequent delays, that, upon the first experiment made under its provisions, it was found to be inef

fectual.

This occurred in the insurrection, or the apprehended insurrection in Pennsylvania, and, shortly after an act was passed for the same pur

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pose, repealing the act in question, and dispensing with most of its dilatory ceremonies, which were found rather calculated to defeat, than to effect the object, in the event of a prompt and formidable resistance, &c. This act contains the following among other provisions:

Third volume Laws, page 189.

"An Act for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, &c.

"SEC. 1. That whenever the laws of the United States shall be opposed or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and cause the laws to be duly executed; and the use of the militia to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

SEC. 2. Provided always, and be it further enacted,

That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by Proclamation, command such insurgents to disperse and retire peaceably to their respective abodes within a limited time."

It cannot escape observation, sir, that the authority given to the President to call out the force of the nation, was limited to the militia only, in both the laws referred to; at that time such were

the apprehensions or fears of employing the regular land or naval forces for the purpose of executing the laws, &c., that the authority to employ them for that purpose was actually withheld from the President. But subsequent events have taught us the necessity and propriety of dismissing such groundless alarms. It was discovered by the insurrection of Burr, that the United States might be attacked and threatened by the most serious dangers in parts where the militia could not be brought to act with effect, and it was rendered probable that the most exposed and defenceless parts would generally become the objects ofattack; accordingly, Congress did not hesitate to pass a law, I believe unanimously, (at least I recollect to have drawn the law. and do not recollect any opposition to its passage) solely for the purpose of authorizing the President to employ the land and naval forces in all cases in which he was previously authorized to call out the militia. The act is in the following words:

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DECEMBER, 1808.

or naval force of the United States as shall be judged necessary, having first observed all the prerequisites of the law in that respect."

as soon as

In all these cases Congress proceeded upon the rational ground of applying the force to the object. It is now proposed to proceed on the same principle, and apply the forceto existing objects. What is the nature of the obstructions to the laws now proposed to be suppressed? Why, sir, they generally are, forcibly seizing and carrying away from the custody of the revenue officer, vessels or other property seized by him for violating the embargo laws. It is a mere scuffle between the revenue officers and unprincipled banditti for the possession of property. Now, sir, in applying the public force to this object, would it not be perfectly absurd to require that the President should be sent to from the extremes of the United States to issue his Proclamation commanding the insurgents to disperse, &c., when their sole object is to disperse the mischief is sper accomplished? This, too, would be almost instantaneous. It certainly would, sir. This is surely a stronger case than the one which called forth precisely a similar provision in 1794, for seizing, &c., vessels intended to be fitted out as privateers in violation of the existing laws; this case is before referred to in the course of these observations. The necessity and propriety of this provision is so obvious, that the people themselves have discovered the want of it, and are now beginning to tender their services for enforcing the embargo laws, in places where they have witnessed their violation-and shall Congress be deterred from accepting this the honorable and patriotic tender of their services? As an honorable testimony of this fact, I have just had put into my hands, the patriotic resolutions of the people of the town of Marblehead, in Massachusetts. They are so highly honorable to the patriotism, disinterestedness, and good sense of

the people of that town, that I beg leave to present them to the Senate in their own words: "At a meeting of the freeholders, and others, inhabitants of the town of Marblehead, legally convened at the Town-house, in said town, on Tuesday, the 7th day of December, 1808, at half-past two o'clock in the afternoon-Capt. Richard James, Moderator.

"The following resolves being read, it was unanimously voted that they pass:

"Resolved, That the town continues steadfast in the faith that the embargo law was a law of wisdom, and that the President and Congress of the United States are entitled and shall receive our warmest thanks for their early attention to the independence, liberty, and just rights of the Union, and particularly of the commercial part thereof.

"Resolved, That this town will use all the energy they possess to carry into full effect all laws the present Congress have or may enact, for the support of our just and equal rights as an independent nation, against the unjustifiable, tyrannical, and imperial orders and decrees of the belligerent Powers of Europe, by proffering to our country our property and services.

"Voted, a committee be appointed to transmit to Joseph Story, Esq., our Representative in Congress, the doings of the meeting.

"Voted, the above committee consist of the follow

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