CHAPTER XII

THE NON-IMPORTATION AND EMBARGO LAWS OF JEFFERSON'S SECOND ADMINISTRATION

EFFERSON'S career is affected with a certain irony. The chief advocate, and perhaps the author, of the strict construction theory of the Constitution, and the founder of the party which has ever since professed to be devoted to the defence of that theory, it was his fortune to enter wilfully upon, and to support to the end of his long life the propriety of, one of the greatest extensions of the powers of the central government under the Constitution which has been made by any President, at least in time of peace. I refer to his non-importation and embargo measures, which were among the important enactments of his second administration.

The non-importation and embargo ordinances of Washington's time were precursors of these measures; and more forceful precedents were also furnished by the law of March 2, 1807, forbidding the importation of slaves after January 1, 1808,1 and by the acts of February 28, 1806, and 'Annals, 9th Cong., 2d Session, p. 1266. (Ed., 1852.)

I

February 24, 1807, suspending all commercial intercourse between the United States and certain parts of the island of St. Domingo. The similarity of these measures, in principle, to the nonimportation and embargo laws of Jefferson's time was perceived at the time; and as no objection appears to have been made to them upon constitutional grounds, they were regarded, and properly, as strong precedents to support the constitutionality of the embargo laws.

The Non-Importation Law

Decisions of the British Admiralty adverse to neutrals, in 1805, the impressment of American seamen, and the injuries to the neutral commerce of the United States, were brought to the attention of Congress by Jefferson's annual message of December 3, 1805,2 and his special message of January 17, 18063; and on January 29, 1806, a resolution was introduced into the House of Representatives by Gregg, of Pennsylvania, which, as amended, provided that until Great Britain should make equitable and satisfactory arrange

'Annals, 9th Cong., 1st Session, p. 1228; 2d Session, p. 1262. The territorial limits of the restriction and the duration of the act were extended by the law of February 24, 1807. Annals, 9th Cong., 2d Session, p. 1262.

2 A draft of this message is in Ford's Writings of Jefferson, vol. viii., p. 384.

3 Writings of Jefferson (Ford), vol. viii., p. 416.

ments concerning impressment and also seizures of goods and vessels, no goods, wares, or merchandise of the growth, produce, or manufacture of Great Britain, or any of the colonies or dependencies thereof, ought to be imported into the United States after November 15, 1806. The resolution also provided that whenever satisfactory arrangements should be made, the President might, by proclamation, fix a day on which the prohibition should cease.'

2

The fear arising that Gregg's resolution might result in reducing the revenues, and in preventing the importation of goods which were indispensable to the welfare of the country, Nicholson introduced a resolution limiting the prohibition against importation to such goods as we could produce for ourselves, or obtain from other countries than Great Britain. The change from Gregg's to Nicholson's resolution did not, of course, affect any constitutional principle, the two resolutions being identical in this respect; and the strong public approval of the restrictive policy at that date is indicated by the passage of Nicholson's resolution in the House of Representatives by 87 votes in favor to 35 against it, and by the passage in the same body of the law of April 18, 1806, which gave effect to the resolution,

1 Annals, 9th Cong., 1st Session, p. 413.

2 Ibid., p. 451.

3 Ibid., p. 823.

3

I

by 93 votes in its favor to 32 against; while in the Senate the bill was approved by 19 votes in its favor to 9 against it. Thus, by a majority of almost three to one, the Congress of 1806 supported the policy of a strict-construction President in favor of prohibiting certain branches of trade. The operation of the law of April 18, 1806, was suspended until July 1, 1807, by the act of December 19, 1806, which also authorized the President to further suspend it, but not beyond the second Monday in December, 1807. This act, therefore, repeated the delegation to the President of certain functions in connection with the carrying out of legislative policies, which we have seen Congress exercising in connection with the embargo measures of Washington's second administration, and this feature of the

'Annals, 9th Cong., 1st Session, pp. 877, 240. The text of the law is in Annals, p. 1259. It provided among other things, that after November 15, 1806, it should not be lawful to import into the United States or the territories thereof, from any port or place situated in Great Britain or Ireland, or in any of the colonies or dependencies of Great Britain, any goods, wares, or merchandise of the description of articles enumerated in the act; nor should it be lawful to import into the United States, or the territories thereof, from any foreign port or place any of the above mentioned goods, wares, merchandise; and the act contained a proviso in favor of goods imported from beyond the Cape of Good Hope within the period of fifteen months. By the Embargo Repeal Law of March 1, 1809, this act was repealed to take effect after May 20, 1809.

2 Annals, 9th Cong., 2d Session, p. 1249.

law seems to have excited no constitutional objection at this time.

Events occurring in Great Britain and France soon, however, resulted in a determination upon the part of Jefferson's administration and supporters in Congress to enter upon the more drastic policy of embargo, in connection with which arguments for and against the prohibitory powers of Congress were greatly developed.

The Embargo Measures of Jefferson's Administration

The proclamations, Orders in Council, and decrees of England and France in 1806 and 1807 had so harassed the trade of the United States with Europe and European colonies, as to reduce it nearly to the condition in which it would have been had England and France declared war upon the United States.

I

These injuries and the capture of the Chesapeake by the Leopard produced so great irritation in the United States, that Jefferson's annual message of October, 1807, and his special message on commercial depredations, of December 18, 1807, were followed by speedy action in Congress. A bill was reported in the Senate laying an embargo

So said by John Quincy Adams, in his address: "To the Citizens of the United States," written after his presidency. Henry Adams, New England Federalism, 1800-1815, p. 187.