Mr. President (41 page)

“The Embargo” (the word is usually capitalized and preceded by the definite article, signifying the uniqueness of the event) would affect American commerce more directly and completely than any piece of legislation in the nation’s history before or since, yet it never received a serious hearing by Congress, much less the public. Was this as the framers intended? At the Federal Convention, before August 24, the working draft stated that the president “may recommend to their [Congress’s] consideration such measures as he shall judge necessary, and expedient.” At Gouverneur Morris’s urging, “may” was changed to “shall,” thereby strengthening the president’s hand, but that did not alter the chain of command: the president recommends, Congress considers and then decides. Twenty years had passed, however, since the Constitution was drafted, and political divisions had altered the very
fabric of that document. Now the president was the leader of a party as well as the nation, and if his party held over 80 percent of the seats in both houses of Congress, as the Republicans did in 1807, he could do as he pleased. There would be no effective check.

As the Embargo took hold on the ground, Gallatin’s warning became prophecy. With livelihoods threatened and eliminated, the “mischief” commenced. Since the Embargo Act applied only to vessels “bound to any foreign port or place,” merchants loaded coastal crafts and sent them to Canada or the West Indies, where they could be reloaded onto more worthy ships and sent on their way. This prompted a second Embargo Act that clamped down on coastal shipping and provided for penalties, which the initial act, prepared in haste, had neglected to do. Still, though, exporters skirted the law by sending goods overland to Canada, thus prompting a third Embargo Act forbidding export by land as well as sea; even goods or produce intended only for Canada became contraband.

The tighter the grip, the greater the impulse to resist. Communities along the Great Lakes and in northern New York and New England, linked by geography to the St. Lawrence and Lake Champlain watercourses, could no longer take pigs or lumber to market across an imaginary international boundary that disrupted the daily flow of commerce. Understandably, they became alienated from restrictions conceived in some distant place and enforced with a strong hand by a central government that did not appear to reflect or even acknowledge their interests. What, exactly, was the difference between shutting down all commerce in these border communities and closing the port of Boston in 1774? Jefferson had assumed that Americans would unite in common cause behind the Embargo, much as they had done in their resistance to British imperial policies during the nonimportation agreements of the 1760s, but the context was altogether different this time around. Back then, enforcement was by local committees, the very people who had fashioned the agreements; now the rules were made and enforced by a faraway government that through its actions had lost the confidence of local people.

As increased enforcement triggered greater resistance, that resistance in turn led the president and Congress to clamp down more tightly yet—a feedback cycle with no apparent end. On April 25, acting as hastily as it had when instituting the Embargo four months earlier,
Congress passed the Enforcement Act of 1808, also known as the Fourth Embargo Act, which authorized government officials to detain any “vessel, flat, or boat”—thus including a simple lake barge—“which there may be reason to suspect” of violating the Embargo. What might such a “reason” be? That was left to the “opinions” of the customs collectors or gunboat officers. Federal agents should suspect “unusual deposites of provisions, lumber, or other articles of domestic growth or manufacture,” but that was their only guidance, other than the port of landing. No vessel was to be granted clearance “for any other port or district of the United States, adjacent to the territories, colonies, or provinces of a foreign nation … without special permission from the President of the United States.” Communities proximate to Canada or the Gulf Coast were thereby forbidden to receive any domestic produce, unless the president himself granted an exemption. While the Embargo was intended to starve Britain and/or France into submission, it would henceforth starve American communities as well—or instead.
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The day Congress passed this draconian measure it adjourned for six months, leaving the execution of the act to President Jefferson. Although the Fourth Embargo Act was in clear violation of the Fourth Amendment, which required “Warrants … upon probable cause” before searches, and the Fifth Amendment, which guaranteed that no citizen be deprived of property “without due process of law,” it did not lead Jefferson into any paroxysms of constitutional soul-searching. Instead, he embraced the unprecedented powers he believed Congress had given him. As he viewed it, he now had the authority to detain violators, seize vessels and cargoes, and levy fines as he pleased; these would serve as his means to accomplish a “great public object.” In letters to Gallatin, to whom he entrusted on-the-ground enforcement, he revealed a sense of relief and even delight that the executive department would not be “trammeled by legal rules of evidence” that “may embarrass judges and juries.” These were “to have no weight with us to whom the law has referred to decide according to our discretion.” The president did not wish to formulate “precise rules” that could be “evaded,” preferring instead to use his broad powers “freely that we may, by a fair experiment, know the power of this great weapon, the embargo.” Gallatin was to decide as many cases on his own as he could, and “where in doubt, consider me as voting for detention.” In localities known for resistance
he was to reverse the burden of proof, assuming guilt unless proven otherwise. “We may fairly require positive proof that the individual of a town tainted with a general spirit of disobedience, has never said or done anything himself to countenance that spirit,” he instructed Gallatin. The most extreme or difficult cases, of course, the president would decide himself.
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One of those towns “tainted with a general spirit of disobedience” was Alburg, Vermont, just south of the Canadian border on Lake Champlain. In June, after a militia company captured a large raft hauling lumber to market in Canada, the owner hired some sixty local lumberjacks to sneak past the militia guard in the dead of night and recapture the raft and its payload. After accomplishing their task, they collected their pay from the raft’s owner and returned to their homes. When Jefferson heard of the incident, he wrote immediately to Gallatin, “We must try to harass the unprincipled agents, and punish as many as we can.” After the lumberjacks were rounded up and placed on trial for treason, Jefferson wrote to Gallatin again: “If all these people are convicted, there will be too many to be punished with death. My hope is that they [the U.S. circuit court in Burlington, where the case was being tried] will send me full statements of every man’s case, that the most guilty may be marked as examples, and the less so suffer long imprisonment under reprieves from time to time.” The president not only sought executions but assumed that he would be the one to determine which of the accused should die.
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Brockholst Livingston, the presiding circuit court judge whom Jefferson had appointed to the Supreme Court the previous year, refused to play along. Expressing his “astonishment” at the government’s case, Livingston instructed the jury that “treason,” as defined by the Constitution, must involve “levying war” against the United States or giving aid and comfort to the enemy, but the defendants, after seizing the raft, had simply returned to their homes, “not suspecting they had a war on their hands, with any power, and least of all with the government of their own country,” and the United States was at war with no nation, so the defendants could not possibly have given aid and comfort to the enemy. They might be guilty of some lesser crime, but to convict these men of treason would establish a “precedent so dangerous” that it would permit “every abuse … in times of public agitation.”
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Livingston was not the only Republican judge to rebuke the president for his enforcement of the Embargo. William Johnson, also a Jefferson
appointee to the Supreme Court, declared in the U.S. circuit court at Charleston that the president had violated the Fourth Embargo Act, which Jefferson and Gallatin had helped draft, by proclaiming in advance that all shipments be denied clearance; the law actually gave the discretionary power of clearance in the case under consideration to customs collectors, not the president, Johnson maintained. “The officers of our government, from the highest to the lowest, are equally subjected to legal restraint,” he chided from the bench. While these Republican judges thought Jefferson had stretched the limits of his power too far, the Federalist judge John Davis, presiding over the U.S. district court for Massachusetts, disagreed with the contention made in his court that the Embargo was unconstitutional on the grounds that Congress possessed only the authority to regulate commerce, not suspend it. Like Hamilton, and unlike the pre-presidential Jefferson, Davis favored a broad construction of federal powers.
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That Jefferson would be scolded by Republican judges and supported by a Federalist judge is hardly as curious as it might seem, for his enforcement of the Embargo had led to a marked extension of executive authority. Indeed, Jefferson had become rather Hamiltonian in his thinking. “Congress must legalize all
means
which may be necessary to obtain its
end
,” he told Gallatin (the emphases are his); Hamilton would have had no problem with that line of reasoning, although his ends would certainly have been different. Was there no limit? “We may consider as further means, how it might do to destroy all boats and canoes on our side of the [St. Marys] river, paying for them?” he queried Gallatin. (The St. Marys River separated Georgia from East Florida, then under Spanish dominion.) That could not be done “without being authorized by law,” Gallatin replied, and Congress was not likely to grant its assent.
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Together, Jefferson and Gallatin went back to Congress for a fifth time, hoping to remedy the “defects” that stood in the way of even tougher enforcement, and this final Embargo Act, which did receive a full airing in Congress, exceeded all others:

Here was a Republican nightmare come true, under the leadership of a Republican president. How had it come to this? Near the close of the Federal Convention, on September 7, Madison had moved that treaties of peace could be authorized by two-thirds of the Senate “without the concurrence of the President.” Potentially, he said, a president could “derive so much power and importance from a state of war that he might be tempted, if authorised, to impede a treaty of peace.” Something akin to this was happening now. Jefferson had so identified his presidency with the Embargo that he could not relinquish it, despite the hardships it produced (tens of thousands of seamen unemployed and widespread food shortages), its divisive impact, and its failure to effect any kind of diplomatic advances with Britain and France. “Agriculture, commerce, [and] navigation,” he said, must “bow” before “the great leading object” of the times, the Embargo; they amounted to “nothing when in competition with that.” This stance, oft repeated and rigidly held, made it impossible for him to retreat. The Embargo was Jefferson’s war, and he had become a wartime president, assuming the extra powers often granted to an executive during such times.
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Yet by the time Jefferson left office on March 4, 1809, the nation had given up on the Embargo, even if Jefferson hadn’t; Congress repealed all acts as of that date. Justifying the apparently failed policy to himself and others proved not so difficult a task for the outgoing president as it might seem. Practically, the Embargo had bought extra time and allowed the nation to prepare for war, if war should come. It “gave us time to call home our seamen, ships and property, to levy men and put our seaports into a certain state of defence,” Jefferson wrote at the very close of his term. Morally, he felt on solid ground too, for at least he had tried an alternative to war.

What about his philosophy of governance? Had he sacrificed cherished Republican principles by centralizing authority, increasing the powers of the executive, and widening the role of a standing army and navy? There too he had an answer. The president is entrusted with the security of the nation, and to fulfill his task and be true to the American people, he must sometimes assume powers he would not ordinarily possess. Eighteen months after leaving office, when asked by a friend “whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law,” he answered that the solution was “easy … in principle, but sometimes embarrassing in practice.” Elaborating, he wrote: