Part 252

Mr. QUINCY.--Mr. Chairman, the amendment proposed to this bill by the gentleman from Virginia (Mr. RANDOLPH) has for its object to limit the Executive discretion in suspending the embargo to certain specified events--the removal of the French decrees; the revocation of the British Orders. It differs from the bill, as it restricts the range of the President’s power to relieve the people from this oppressive measure. In this point of view, it appears to me even more objectionable than the bill itself. To neither can I yield my sanction. And as the view which I shall offer will be different from any which has been taken of this subject, I solicit the indulgence of the committee.

A few days since, when the principle of this bill was under discussion, in the form of a resolution, a wide field was opened. Almost every subject had the honors of debate except that which was the real object of it. Our British and French relations, the merits and demerits of the expired and rejected treaty, as well as those of the late negotiators, and of the present Administration; all were canvassed. I enter not upon these topics. They are of a high and most interesting nature; but their connection with the principle of this bill is, to say the least, remote. There are considerations intimately connected with it, enough to interest our zeal and to awaken our anxiety.

The question referred to our consideration is, shall the President be authorized to suspend the embargo on the occurrence of certain specified contingencies? The same question is included in the proposed amendment and the bill. Both limit the exercise of the power of suspension of the embargo to the occurrence of certain events. The only difference is, that the discretion given by the former is more limited; that given by the latter is more liberal.

In the course of the former discussion a constitutional objection was raised which, if well founded, puts an end to both bill and amendment. It is impossible, therefore, not to give it a short examination. It was contended that the constitution had not given this House the power to authorize the President at his discretion to suspend a law. The gentleman from Maryland (Mr. KEY) and the gentleman from Virginia, (Mr. RANDOLPH,) both of great authority and influence in this House, maintained this doctrine with no less zeal than eloquence. I place my opinion, with great diffidence, in the scale, opposite to theirs. But as my conviction is different, I must give the reasons for it--why I adhere to the old canons; those which have been received as the rule, both of faith and practice, by every political sect which has had power, ever since the adoption of the constitution, rather than to these new dogmas.

The Constitution of the United States, as I understand it, has in every part reference to the nature of the things and the necessities of society. No portion of it was intended as a mere ground for the trial of technical skill or verbal ingenuity. The direct, express powers, with which it invests Congress, are always to be so construed as to enable the people to attain the end for which they were given. This is to be gathered from the nature of those powers, compared with the known exigencies of society and the other provisions of the constitution. If a question arise, as in this case, concerning the extent of the incidental and implied powers vested in us by the constitution, the instrument itself contains the criterion by which it is to be decided. We have authority to make “laws necessary and proper for carrying into execution” powers unquestionably vested. Reference must be had to the nature of these powers to know what is “necessary and proper” for their wise execution. When this necessity and propriety appear, the constitution has enabled us to make the correspondent provisions. To the execution of many of the powers vested in us by the constitution, a discretion is necessarily and properly incident. And when this appears from the nature of any particular power, it is certainly competent for us to provide by law that such a discretion shall be exercised. Thus, for instance, the power to borrow money must in its exercise be regulated, from its very nature, by circumstances, not always to be anticipated by the Legislature at the time of passing a law authorizing a loan. Will any man contend that the Legislature is necessitated to direct either absolutely that a certain sum shall be borrowed, or to limit the event on which the loan is to take place? Cannot it vest a general discretion to borrow or not to borrow, according to the view which the Executive may possess of the state of the Treasury, and of the general exigencies of the country, particularly in cases where the loan is contemplated at some future day, when perhaps Congress is not in session, and when the state of the Treasury, or of the country, cannot be foreseen? In the case of the two millions appropriated for the purchase of the Floridas, such a discretion was invested in the Executive. He was authorized, “if necessary, to borrow the sum, or any part thereof.” This authority he never exercised, and thus, according to the argument of gentlemen on the other side, he has made null a legislative act. For so far as it depended upon his discretion, this not being exercised, it is a nullity. The power “to pay the debts of the United States” will present a case in which, from the nature of the power, a discretion to suspend the operation of a law may be necessary and proper to its execution. Congress by one law direct the executive to pay off the eight per cent. stock. Will gentlemen seriously contend that by another it may not invest him with a general discretion to stop the payment; that is, to suspend the operation of the former law, if the state of the Treasury, or even more generally if the public good should in his opinion require it? An epidemic prevails in one of our commercial cities; intercourse is prohibited with it; Congress is about to terminate its session, and the distemper still rages. Can it be questioned, that it is within our constitutional power to authorize the President to suspend the operation of the law, whenever the public safety will permit? Whenever, in his opinion, it is expedient? The meanest individual in society, in the most humble transactions of business, can avail himself of the discretion of his confidential agent, in cases where his own cannot be applied. Is it possible that the combined wisdom of the nation is debarred from investing a similar discretion, whenever, from the nature of the particular power, it is necessary and proper to its execution?

The power of suspending laws, against which we have so many warnings in history, was a power exercised contrary to the law, or in denial of its authority, and not under the law and by virtue of its express investment. Without entering more minutely into the argument, I cannot doubt but that Congress does possess the power to authorize the President by law to exercise a discretionary suspension of a law. A contrary doctrine would lead to multiplied inconveniences; and would be wholly inconsistent with the proper execution of some of the powers of the constitution. It is true that this, like every other power, is liable to abuse. But we are not to forego a healthy action, because, in its excess, it may be injurious.

The expediency of investing the Executive with such an authority, is always a critical question. In this case, from the magnitude of the subject, and the manner in which the embargo oppresses all our interests, the inquiry into our duty in relation to it, is most solemn and weighty. It is certain some provision must be made touching the embargo, previous to our adjournment. A whole people is laboring under a most grievous compression. All the business of the nation is deranged. All its active hopes are frustrated. All its industry stagnant. Its numerous products hastening to their market, are stopped in their course. A dam is thrown across the current, and every hour the strength and the tendency towards resistance is accumulating. The scene we are now witnessing is altogether unparalleled in history. The tales of fiction have no parallel for it. A new writ is executed upon a whole people. Not, indeed, the old monarchical writ, ne exeat regum, but a new republican writ, ne exeat rempublicam. Freemen, in the pride of their liberty, have restraints imposed on them, which despotism never exercised. They are fastened down to the soil by the enchantment of law; and their property vanishes in the very process of preservation. It is impossible for us to separate and leave such a people, at such a moment as this, without administering some opiate to their distress. Some hope, however distant, of alleviation must be proffered; some prospect of relief opened. Otherwise, justly might me fear for the result of such an unexampled pressure. Who can say what counsels despair might suggest, or what weapons it might furnish?

Some provision then, in relation to the embargo, is unavoidable. The nature of it, is the inquiry. Three courses have been proposed--to repeal it; to stay here and watch it; to leave with the Executive the power to suspend it. Concerning repeal I will say nothing. I respect the known and immutable determination of the majority of this House. However convinced I may be, that repeal is the only wise and probably the only safe course, I cannot persuade myself to urge arguments which have been often repeated, and to which, so far from granting them any weight, very few seem willing to listen. The end to which I aim will not counteract the settled plan of policy. I consider the embargo as a measure from which we are not to recede, at least not during the present session. And my object of research is, in what hands, and under what auspices it shall be left, so as best to effect its avowed purpose and least to injure the community. Repeal, then, is out of the question. Shall we stay by and watch? This has been recommended. Watch! What? “Why, the crisis!” And do gentlemen seriously believe that any crisis, which events in Europe are likely to produce will be either prevented or meliorated, by such a body as this, remaining, during the whole summer, perched upon this bill?

To the tempest which is abroad we can give no direction; over it we have no control. It may spend its force on the ocean, now desolate by our laws, or it may lay waste our shores. We have abandoned the former, and for the latter, though we have been six months in session, we have prepared no adequate shield. Besides, in my apprehension, it is the first duty of this House to expedite the return of its members to their constituents. We have been six months in continued session. We begin, I fear, to lose our sympathies for those whom we represent. What can we know, in this wilderness, of the effects of our measures upon civilized and commercial life? We see nothing, we feel nothing, but through the intervention of newspapers, or of letters. The one obscured by the filth of party; the other often distorted by personal feeling or by private interest. It is our immediate, our indispensable duty, to mingle with the mass of our brethren and by direct intercourse to learn their will; to realize the temperature of their minds; to ascertain their sentiments concerning our measures. The only course that remains is to leave with the Executive the power to suspend the embargo. But the degree of power with which he ought to be vested, is made a question. Shall he be limited only by his sense of the public good, to be collected from all the unforeseen circumstances which may occur during the recess; or shall it be exercised only on the occurrence of certain specified contingencies? The bill proposes the last mode. It also contains other provisions highly exceptionable and dangerous; inasmuch as it permits the President to raise the embargo, “in part or in whole,” and authorizes him to exercise an unlimited discretion as to the penalties and restrictions he may lay upon the commerce he shall allow. My objections to the bill, therefore, are--first, that it limits the exercise of the Executive as to the whole embargo, to particular events, which if they do not occur, no discretion can be exercised, and let the necessity of abandoning the measure be, in other respects, ever so great, the specified events not occurring, the embargo is absolute at least until the ensuing session; next, that if the events do happen, the whole of the commerce he may in his discretion set free, is entirely at his mercy; the door is opened to every species of favoritism, personal or local. This power may not be abused; but it ought not to be trusted. The true, the only safe ground on which this measure, during our absence, ought to be placed is, that which was taken in the year 1794. The President ought to have authority to take off the prohibition, whenever, in his judgment, the public good shall require; not partially, not under arbitrary bonds and restrictions; but totally, if at all. I know that this will be rung in the popular ear, as an unlimited power. Dictatorships, protectorships, “shadows dire will throng into the memory.” But let gentlemen weigh the real nature of the power I advocate, and they will find it not so enormous as it first appears, and in effect much less than the bill itself proposes to invest. In the one case he has the simple and solitary power of raising or retaining the prohibition, according to his view of the public good. In the other he is not only the judge of the events specified in the bill, but also of the degree of commerce to be permitted, of the place from which and to which it is to be allowed; he is the judge of its nature, and has the power to impose whatever regulation he pleases. Surely there can be no question but that the latter power is of much more magnitude and more portentous than the former. I solicit gentlemen to lay aside their prepossessions and to investigate what the substantial interest of this country requires; to consider by what dispositions this measure may be made least dangerous to the tranquillity and interests of this people; and most productive of that peculiar good, which is avowed to be its object. I address not those who deny our constitutional power to invest a discretion to suspend, but I address the great majority, who are friendly to this bill, who, by adopting it, sanction the constitutionality of the grant of fresh authority to whom, therefore, the degree of discretion is a fair question of expediency. In recommending that a discretion, not limited by events, should be vested in the Executive, I can have no personal wish to argument his power. He is no political friend of mine. I deem it essential, both for the tranquillity of the people and for the success of the measure, that such a power should be committed to him. Neither personal nor party feelings shall prevent me from advocating a measure, in my estimation, salutary to the most important interests of this country. It is true that I am among the earliest and the most uniform opponents of the embargo. I have seen nothing to vary my original belief, that its policy was equally cruel to individuals and mischievous to society. As a weapon to control foreign powers, it seemed to me dubious in its effect, uncertain in its operation; of all possible machinery the most difficult to set up, and the most expensive to maintain. As a mean to preserve our resources, nothing could, to my mind, be more ill adapted. The best guarantees of the interest society has in the wealth of the members which compose it, are the industry, intelligence, and enterprise of the individual proprietors, strengthened as they always are by knowledge of business, and quickened by that which gives the keenest edge to human ingenuity--self-interest. When all the property of a multitude is at hazard, the simplest and surest way of securing the greatest portion, is not to limit individual exertion, but to stimulate it; not to conceal the nature of the exposure, but, by giving a full knowledge of the state of things, to leave the wit of every proprietor free, to work out the salvation of his property, according to the opportunities he may discern. Notwithstanding the decrees of the belligerents, there appeared to me a field wide enough to occupy and reward mercantile enterprise. If we left commerce at liberty, we might, according to the fable, lose some of her golden eggs; but if we crushed commerce, the parent which produced them, with her our future hopes perished. Without entering into the particular details whence these conclusions resulted, it is enough that they were such as satisfied my mind as to the duty of opposition to the system, in its incipient state, and in all the restrictions which have grown out of it. But the system is adopted. May it be successful! It is not to diminish, but to increase the chance of that success, I urge that a discretion, unlimited by events, should be vested in the Executive. I shall rejoice if this great miracle be worked. I shall congratulate my country, if the experiment shall prove, that the old world can be controlled by fear of being excluded from the commerce of the new. Happy shall I be, if on the other side of this dark valley of the shadow of death, through which our commercial hopes are passing, shall be found regions of future safety and felicity.

Among all the propositions offered to this House, no man has suggested that we ought to rise and leave this embargo until our return, pressing upon the people, without some power of suspension vested in the Executive. Why this uniformity of opinion? The reason is obvious; the greatness of comparison. If the people were left six months without hope, no man could anticipate the consequences. All agree that such an experiment would be unwise and dangerous. Now, precisely the same reasons which induce the majority not to go away without making some provision for its removal, on which to feed popular expectation, is conclusive in my mind that the discretion proposed to be invested should not be limited by contingencies.

The embargo power, which now holds in its palsying gripe all the hopes of this nation, is distinguished by two characteristics of material import, in deciding what control shall be left over it during our recess. I allude to its greatness and its novelty.

As to its greatness, nothing is like it. Every class of men feels it. Every interest in the nation is affected by it. The merchant, the farmer, the planter, the mechanic, the laboring poor; all, are sinking under its weight. But there is this peculiar in it, that there is no equality in its nature. It is not like taxation, which raises revenue according to the average of wealth; burdening the rich and letting the poor go free. But it presses upon the particular classes of society, in an inverse ratio to the capacity of each to bear it. From those who have much it takes, indeed, something. But from those who have little, it takes all. For what hope is left to the industrious poor, when enterprise, activity, and capital are proscribed their legitimate exercise? This power resembles not the mild influences of an intelligent mind, balancing the interests and condition of men, and so conducting a complicated machine as to make inevitable pressure bear upon its strongest parts. But it is like one of the blind visitations of nature; a tornado or a whirlwind. It sweeps away the weak; it only strips the strong. The humble plant, uprooted, is overwhelmed by the tempest. The oak escapes with the loss of nothing except its annual honors. It is true the sheriff does not enter any man’s house to collect a tax from his property. But want knocks at his door and poverty thrusts his face into the window. And what relief can the rich extend? They sit upon their heaps and feel them moulding into ruins under them. The regulations of society forbid what was once property, to be so any longer. For property depends on circulation; on exchange; on ideal value. The power of property is all relative. It depends not merely upon opinion here, but upon opinion in other countries. If it be cut off from its destined market, much of it is worth nothing, and all of it is worth infinitely less than when circulation is unobstructed.

This embargo power is therefore of all powers the most enormous, in the manner in which it affects the hopes and interests of a nation. But its magnitude is not more remarkable than its novelty. An experiment, such as is now making, was never before--I will not say tried--it never before entered into the human imagination. There is nothing like it in the narrations of history or in the tales of fiction. All the habits of a mighty nation are at once counteracted. All their property depreciated. All their external connections violated. Five millions of people are engaged. They cannot go beyond the limits of that once free country; now they are not even permitted to thrust their own property through the grates. I am not now questioning its policy, its wisdom, or its practicability, I am merely stating the fact. And I ask if such a power as this, thus great, thus novel, thus interfering with all the great passions and interests of a whole people, ought to be left for six months in operation, without any power of control, except upon the occurrence of certain specified and arbitrary contingencies? Who can foretell when the spirit of endurance will cease? Who, when the strength of nature shall outgrow the strength of your bonds? Or if they do, who can give a pledge that the patience of the people will not first be exhausted? I make a supposition, Mr. Chairman--you are a great physician; you take a hearty, hale man, in the very pride of health, his young blood all active in his veins, and you outstretch him on a bed; you stop up all his natural orifices, you hermetically seal down his pores, so that nothing shall escape outwards, and that all his functions and all his humors shall be turned inward upon his system. While your patient is laboring in the very crisis of this course of treatment, you, his physician, take a journey into a far country, and you say to his attendant, “I have a great experiment here in process, and a new one. It is all for the good of the young man, so do not fail to adhere to it. These are my directions, and the power with which I invest you. No attention is to be paid to any internal symptom which may occur. Let the patient be convulsed as much as he will, you are to remove none of my bandages. But, in case something external should happen; if the sky should fall, and larks should begin to appear, if three birds of Paradise should fly into the window, the great purpose of all these sufferings is answered. Then, and then only, have you my authority to administer relief.”

The conduct of such a physician, in such a case, would not be more extraordinary than that of this House in the present, should it adjourn and limit the discretion of the Executive to certain specified events arbitrarily anticipated; leaving him destitute of the power to grant relief should internal symptoms indicate that nothing else would prevent convulsions. If the events you specify do not happen, then the embargo is absolutely fixed until our return. Is there one among us that has such an enlarged view of the nature and necessities of this people as to warrant that such a system can continue six months longer? It is a presumption which no known facts substantiate, and which the strength and the universality of the passions such a pressure will set at work in the community, render, to say the least, of very dubious credit. My argument in this part has this prudential truth for its basis: If a great power is put in motion, affecting great interests, the power which is left to manage it should be adequate to its control. If the power be not only great in its nature, but novel in its mode of operation, the superintending power should be permitted to exercise a wise discretion; for if you limit him by contingencies, the experiment may fail, or its results be unexpected. In either case, nothing but shame or ruin would be our portion.

But I ask the House to view this subject in relation to the success of this measure, which the majority have justly so much at heart. Which position of invested power is the most auspicious to a happy issue?

As soon as this House has risen, what think you will be the first question every man in this nation will put to his neighbor? Will it not be--“What has Congress done with the embargo?” Suppose the reply should be--“They have made no provision. This corroding cancer is to be left absolutely on the vitals six months longer.” Is there a man who doubts but that such a reply would sink the heart of every owner of property, and of every laborer in the community? No man can hesitate. The magnitude of the evil, the certain prospect of so terrible a calamity thus long protracted, would itself tend to counteract the continuance of the measure by the discontent and despair it could not fail to produce in the great body of the people. But suppose in reply to such a question, it should be said--“The removal of the embargo depends upon events. France must retrace her steps. England must apologize and atone for her insolence. Two of the proudest and most powerful nations on the globe must truckle for our favor, or we shall persist in maintaining our dignified retirement.” What then would be the consequence? Would not every reflecting man in the nation set himself at work to calculate the probability of the occurrence of these events? If they were likely to happen, the distress and discontent would be scarcely less than in the case of absolute certainty for six months’ perpetuation of it. For if the events do not happen, the embargo is absolute. Such a state of popular mind all agree is little favorable either to perseverance in the measure, or to its ultimate success. But suppose that the people should find a discretionary power was invested in the Executive, to act as in his judgment, according to circumstances, the public good should require. Would not such a state of things have a direct tendency to allay fear, to tranquillize discontent, and encourage endurance of suffering? Should experience prove that it is absolutely insupportable, there is a constitutional way of relief. The way of escape is not wholly closed. The knowledge of this fact would be alone a support to the people. They would endure it longer. They would endure it better. We would be secure of a more cordial co-operation in the measure, as the people would see they were not wholly hopeless, in case the experiment was oppressive. Surely nothing can be more favorable to its success than producing such a state of public sentiment.

We are but a young nation. The United States are scarcely yet hardened into the bone of manhood. The whole period of our national existence has been nothing else than a continued series of prosperity. The miseries of the Revolutionary war were but as the pangs of parturition. The experience of that period was of a nature not to be very useful after our nation had acquired an individual form and a manly, constitutional stamina. It is to be feared we have grown giddy with good fortune; attributing the greatness of our prosperity to our own wisdom, rather than to a course of events, and a guidance over which we had no influence. It is to be feared that we are now entering that school of adversity, the first blessing of which is to chastise an overweening conceit of ourselves. A nation mistakes its relative consequence, when it thinks its countenance, or its intercourse, or its existence, all-important to the rest of the world. There is scarcely any people, and none of any weight in the society of nations, which does not possess within its own sphere all that is essential to its existence. An individual who should retire from conversation with the world for the purpose of taking vengeance on it for some real or imaginary wrong, would soon find himself grievously mistaken. Notwithstanding the delusions of self-flattery, he would certainly be taught that the world was moving along just as well, after his dignified retirement, as it did while he intermeddled with its concerns. The case of a nation which should make a similar trial of its consequence to other nations, would not be very different from that of such an individual. The intercourse of human life has its basis in a natural reciprocity, which always exists, although the vanity of nations, as well as of individuals, will often suggest to inflated fancies, that they give more than they gain in the interchange of friendship, of civilities, or of business. I conjure gentlemen not to commit the nation upon the objects of this embargo measure, but by leaving a wise discretion during our absence with the Executive, neither to admit nor deny by the terms of our law that its object was to coerce foreign nations. Such a state of things is safest for our own honor and the wisest to secure success for this system of policy.

Mr. KEY said he well knew how painful it was to address gentlemen who had already made up their minds; but the magnitude of this important constitutional question compelled him to trespass for a few moments on the patience of the House. I shall, said he, confine myself to the constitutionality of the bill from the Senate, in hopes that if the House feel the impressions on the subject which I feel, they will reject it; or at least word it so, that the power given to the President shall be constitutional. I was in hopes, from the talents of the gentlemen who spoke the other day, that I should have heard some reply, some attempt made to defeat the constitutional objections which I offered to the resolution; if they did not meet them with fair argument, that they would at least have shown what part of the conclusions which I had drawn were incorrect. Gentlemen say the argument is not true. They must either allow my deductions, or show wherein I am incorrect in drawing them. I call upon the understanding of the House, and their attachment to the constitution, to follow me but for a few moments, and see whether we can vest the power contemplated by the bill.

All the respective Representatives of the people of the States at large, and the sovereignty in a political capacity of each State, must concur to enact a law. An honorable gentleman from Tennessee (Mr. CAMPBELL) admitted that the power to repeal must be coextensive with the power to make. If this be admitted, I will not fail to convince you that in the manner in which this law is worded we cannot constitutionally assent to it. What does it propose? To give the President of the United States power to repeal an existing law now in force--upon what? Upon the happening of certain contingencies in Europe? No; but if those contingencies when they happen in his judgment shall render it safe to repeal the law, a discretion is committed to him, upon the happening of those events, to suspend the law. It is that discretion to which I object. I do not say it would be improperly placed at all; but the power and discretion to judge of the safety of the United States, is a power legislative in its nature and effects, and as such, under the constitution, cannot be exercised by one branch of the Legislature. I pray gentlemen to note the distinction: that whenever the events happen, if the President exercise his judgment upon those events, and suspend the law, it is the exercise of a legislative power; the people, by the constitution of the country, never meant to confide to any one man the power of legislating for them.

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 the throne, 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. KEY then 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 will find 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 law ad libitum when 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. HOLLAND said, 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.