Thursday, October 29, 2009

"Congress must legalize all means . . . necessary to obtain it's ends"

In Prologue to War: England and the United States 1805-1812 author Bradford Perkins is most interested in the development of policies that contributed to tensions between the two countries. As a result, he pays scant attention to the violations of civil liberties that accompanied the Embargo of 1807-1809. Even so, he makes pretty clear that Thomas Jefferson was knee deep in the enforcement policies that created the worst excesses. He references in particular the hair-raising correspondence exchanged between the president and his Secretary of State Albert Gallatin in the summer of 1808:
If the Embargo was considered as a prelude to war, a precaution, or shock treatment of European psyches – Jefferson talked of all these – occasional violations did not much matter. In any event all risk would be borne by the transgressing shipowner [whose vessel might be seized by the British or French]. As the coercive emphasis [i.e., the rationale that the embargo was intended to coerce the British and the French into respecting American rights] increased in the spring of 1808, becoming the only possible excuse for the continuation of a policy that had demonstrably failed in its other aims, airtight enforcement of the Embargo assumed new importance. The President devoted most of the energies of his last year in office to this task.

* * *

In the summer of 1808, after gathering much information during a visit to New York, [Secretary of the Treasury Albert] Gallatin wrote to the President that “if the embargo must be persisted in any longer,” new legislation must be passed to “invest the Executive with the most arbitrary powers & sufficient force” to execute them. He suggested that not a single vessel be permitted to move without presidential approval, that collectors be permitted to seize goods “any where” and to remove rudders and rigging from any suspected vessels, and that “a little army” be collected along the Canadian frontier.

Here is the relevant passage from Gallatin's letter, dated July 29, 1808:
With those difficulties we must struggle as well as we can this summer; but I am perfectly satisfied that if the embargo must be persisted in any longer, two principles must necessarily be adopted in order to make it sufficient: 1st, that not a single vessel shall be permitted to move without the special permission of the Executive; 2d, that the collectors be invested with the general power of seizing property anywhere, and taking the rudders or otherwise effectually preventing the departure of any vessel in harbor, though ostensibly intended to remain there; and that without being liable to personal suits. I am sensible that such arbitrary powers are equally dangerous and odious. But a restrictive measure of the nature of the embargo applied to a nation under such circumstances as the United States cannot be enforced without the assistance of means as strong as the measure itself. To that legal authority to prevent, seize, and detain must be added a sufficient physical force to carry it into effect; and although I believe that in our seaports little difficulty would be encountered, we must have a little army along the Lakes and British lines generally.

Perkins then describes and characterizes Jefferson's response:
These suggestions, perhaps designed as much to shock the President into a reconsideration of his policy as to make the Embargo effective, did not shake the Chief Executive, who replied [in a letter dated August 11, 1808], “I am satisfied with you that if the orders & decrees are not repealed, & a continuance of the embargo is preferred to war (which sentiment is universal here), Congress must legalize all means which may be necessary to obtain it's [sic] end.”

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