Thomas Jefferson Enforces the Embargo 1: Congress Authorizes the Use of the Army and Navy to Suppress Insurrection

In Jefferson and Civil Liberties: The Darker Side, Leonard W. Levy presents a damning portrait Thomas Jefferson’s conduct in connection with his attempts to enforce the 15-month embargo from December 1807 to March 1809:

[B]y late summer of 1808, the regular army, the previously dreaded “standing army in time of peace,” was regularly employed in the enforcement of the embargo laws in the Northeastern United States. By the same time, naval gunboats and revenue cutters patrolled the inland waterways and coasts of the nation.

On a prolonged, widespread, and systematic basis, in some places lasting nearly a year, the armed forces harried and beleaguered the citizenry. Never before or since did American history exhibit such a spectacle of derangement of normal values and perspectives. . . . Under Jefferson, from the summer of 1808 until the time he left office, in March of 1809, “insurrections” were continuous throughout an entire section of the nation and the armed forces were employed on a sustained basis, as if it were normal for American soldiers and sailors to enforce against American citizens their own laws.

I thought I’d take a few posts to examine the seamy underbelly ignored in most treatments of the Divine Jefferson.

The first plank of the legal structure that Jefferson would use to oppress the country was laid in early 1807. Despite the excuses that the Whiskey Rebellion and Fries’s Rebellion might have provided, the Federalists had never passed a law authorizing the regular army or navy to suppress domestic violence or rebellion.

Not so Jefferson and his followers. On March 3, 1807, in the wake of the alleged Aaron Burr conspiracy, the Jeffersonian Congress passed An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections:

Be it enacted, &c., That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual State or Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

The requirement of the last clause that the president “first observe[] all the pre-requisites of the law” imposed no effective check on a determined executive. The “law” referred to, Section 2 of the Militia Act of 1795, gave the president absolute discretion over whether to call out the militia against domestic rebellion:

SEC. 2. And be it further enacted, 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 any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so 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.

President Thomas Jefferson now had the power to call out the army and the navy to suppress domestic "combinations" that he deemed "too powerful to be suppressed by the ordinary course of judicial proceedings."