Substantial though Thomas Jefferson’s assumption
of executive authority may have been in 1803 when he purchased the French
territory of Louisiana in spite of a seeming lack of authorization in the text
of the Constitution, this act of political expediency was fairly dwarfed in
scope and scale by his final major pursuit as President. Dogged, still, by the
outlying effects of the ongoing war between Great Britain and Napoleonic France
– a conflict which had been substantially impacting American foreign and
domestic politics since the early 1790s – Jefferson sought relief from
continued European molestation of American “contraband” shipping by
implementing what turned out to be one of the most disastrous policies ever put
forward by an American president. Passed with substantial majorities in both
the House and the Senate in December, 1807 and signed into law by Jefferson
shortly thereafter, the Embargo Act expanded on an existing ban on a multitude
of foreign imports – intended to force cooperation with American priorities by
attacking European manufacturing – by essentially prohibiting any non-military
vessels under American jurisdiction from making voyages to foreign ports for
any reason whatsoever. The goal, as with the aforementioned Non-Importation Act
(1806), was to exact concessions from the governments of Britain and France by
depriving them of access to American markets. So essential had American
customers and American produce become to European economies, Jefferson
reasoned, that the sudden loss of the same was bound to induce greater respect
for American commercial neutrality. But while this might have been a sound
enough argument on paper, the result as it played out fell somewhat short of the
mark. And in the meantime, stubbornly convinced that the Embargo Act would work
if it was allowed to remain active for just a little longer, the Jefferson
Administration oversaw a massive expansion of executive power in the name of
enforcing and policing the complete shutdown of American overseas trade.
To the credit of Jefferson and his
supporters among the Democratic-Republicans, it could not be said that the
Embargo Act in itself represented an exercise of federal power not authorized
by the Constitution. Article I, Section 8 states quite clearly that Congress
possesses the authority, “To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes [.]” As the terms of the
aforementioned Necessary and Proper clause – also located in Article I, Section
8 – furthermore grants the federal legislature the power to pass whatever laws
a majority therein deems necessary to make use of the cited regulatory
authority, no one could have claimed in 1807 that the terms and implications of
the Embargo Act fell beyond the remit of the Democratic-Republicans in Congress
or their erstwhile ally in the White House. But while the resulting shutdown of
American overseas trade may indeed have been entirely legal and constitutional,
it still came at a significant cost. Not only did Jefferson and his fellow
partisans end up doing significant damage to the American economy, but the
President’s obstinate belief in the efficacy of the embargo ended up empowering
the Executive Branch in exactly the sort of way that the Democratic-Republicans
had vehemently opposed when they first coalesced as a political force in the
1790s. If Jefferson understood this to be the case, however, he showed no sign
of it. Perhaps, as in 1803, he felt himself to be so near an important goal –
i.e. the use of trade and diplomacy as a means of avoiding war – that he
decided to forgive himself what he doubtless believed would be only a temporary
break with his convictions so that he might see said goal accomplished. And then
again, maybe his actions in 1803 had taught him to stop worrying about such
things altogether. So long as what he was doing was truly to the benefit of the
nation as a whole – and Jefferson naturally thought of this of his every word
and action while in office – then it made little sense at all to be constantly
wringing one’s hands about the powers at the disposal of the American
presidency. If it was one’s authority to accomplish something useful, then why
not just get on with it?
Doubtless this kind of question did not
occur to Jefferson until fairly late in his attempted enforcement of the terms
of the aforementioned legislation. At the outset, in December of 1807, the
Embargo Act was almost certainly viewed by the Democratic-Republicans in
Congress and the President alike as a temporary measure likely to bring a swift
end to the ongoing harassment of American shipping. The British economy, after
all, was deeply dependent on access to American produce – particularly such
staple crops as helped feed the slave populations of British-controlled sugar
plantations in the West Indies – and equally reliant on access to American
consumers for British manufactured goods. And while Britain’s wartime trade
policies certainly did little to strengthen the Anglo-American commercial
relationship, the sitting British government surely neither intended nor
desired the termination of any and all commercial intercourse between
themselves and the American republic. Napoleonic France was in a similar
position, though they traded less with the United States than Britain did, and
had pursued a course of commercial restrictions for much the same reasons.
Having been in conflict with each other in some form for over a decade by 1807,
British and French authorities alike were exceptionally keen to find some way
of choking their enemy into submission without exposing what each had come to
understand as their mutual – and potentially fatal – weaknesses.
Britain’s Royal
Navy was unchallenged on the seas, as indeed it had been for quite some time.
Meanwhile, thanks to the baptism of fire that was the French Revolution and
Napoleon’s subsequent rise to power, France’s army was dominant on land. The
only way for either power to gain some measure of advantage, therefore, was to
extend the relevant conflict into a new theatre of operations. Trade was the
answer, with Britain and France each resolving to cut off the other’s access to
enough markets so that their opponent’s economy would eventually begin to starve.
First, by way of an Order in Council in May of 1806, the British government
declared a blockade on all French ports along the length of the English Channel
to be enforced by the full might of Britain’s Royal Navy. When the French
responded to this attempt at commercial strangulation with the Berlin Decree in
November of that same year, the terms of which purported to place Great Britain
under blockade in turn, British authorities released a second Order in Council
the following November extending their blockade to the whole of France and any
and all of its allies. All vessels bound for Europe were required to dock in
Britain first so that their cargoes could be inspected for military supplies. Those
which refused were to be deemed fit for seizure. Napoleon’s Milan Decree of the
following month more or less completed this exchange of blows by declaring that
all vessels which used British ports or paid British tariffs were to be
considered by France to be British, and thus hostile.
These policies
didn’t just impact the British and the French, of course. American shipping had
come to dominate a significant percentage of the Atlantic market thanks in
large part to the ongoing conflicts in Europe. French and Spanish in particular
merchants had come to prefer risking American vessels on the increasingly
dangerous Atlantic “carrying trade” rather than place their own ships at risk
of capture, and the dueling commercial restrictions implemented by Great
Britain and France significantly impacted American profits and American pride. Revenues
being diminished and insurance rates increased, but the callous treatment of
American trade also arguably cut to the heart of contemporary American
insecurities as to the status and dignity of the United States vis-à-vis the
great powers of Europe. The American republic was not a great power itself, of
course. Despite its economic dynamism and abundance of natural resources, the
comparatively small population of the United States and its people’s lingering
dislike of large military establishments more or less guaranteed that older,
more populous, and traditionally martial European nations would continue to
dominate global geo-politics. At the same time, however, the moral and
philosophical principles at the heart of the American Revolution prized
equality above few other virtues, and the realization thereof consequently
became an essential conviction of American national identity. The United States
may not have been a military powerhouse like France, or a naval superpower like
Britain, but none of that really mattered as far as Americans in the early 19th
century were concerned. The American republic was a sovereign nation, they
declared, and on that basis alone deserved to be treated with the same dignity
and respect enjoyed by even its most powerful counterparts in Europe or
elsewhere. As the manhandling of American shipping by Britain and France
violated this principle, it was natural for the American people and their
leaders to take some degree of offense.
A resort to arms would have been the
most obvious means of redress. Jefferson could have threatened war against
Britain, or France, of both unless they lifted their restrictions against
American trade. Granted, the Democratic-Republicans had shown themselves to be
vehemently opposed to war with France as recently as the late 1790s despite
repeated naval engagements between French and American vessels at sea, but
Jefferson surely could have argued his way around this point. Only a few years
earlier, after all, these same Democratic-Republicans had been vigorously
agitating for war between the United States and Great Britain regardless of the
potential cost in blood and treasure. It wasn’t war itself that he and his
colleagues opposed, he might well have asserted, but rather war waged upon an
unjust and illiberal basis. Jefferson nearly had cause to deploy such
rationalizations when a British vessel fired on an American warship off the
coast of Virginia in June 1807. Immediately assuming unilateral authority to
call out the state militias, banish British vessels from American ports, and
make such arms purchases as would put the country on a footing for war, the
President seemed entirely prepared to take up the same kind of martial attitude
which he and his fellow partisans had decried when previously exhibited by the
administrations of Washington and Adams. Before the formal commencement of
hostilities could be declared, however, Jefferson seemed to experience something
of a change of heart.
By this point in
his career – and for whatever reason – the Sage of Monticello had evidently
concluded that armed conflict was perhaps not something nations should pursue
at the first sign of disagreement. Despite his evident willingness to assume a
warlike aspect in response to what might well have been a simple overreaction
on the part of a handful of British naval officers, he accordingly appeared amenable
to some manner of alternative resolution. Thus, in answer to the aforementioned
incident at sea, he called a special session of Congress in October of 1807 for
the purpose of either considering a declaration of war or expanding upon the
aforementioned Non-Importation Act of 1806. The assembled Congressmen and
Senators, perhaps taking their cues from the President, chose the latter
course, the result of which was the passage of the Embargo Act that very same
December. Its terms were simple enough, if also somewhat open-ended. All ships
under United States jurisdiction were to be prevented from undertaking voyages of
any kind to foreign ports. All merchant ships travelling between American ports
were required to purchase a bond against the possibility that they might seek
to evade the embargo. All warships were exempt from any restrictions on their
movement within and outside of American territory. And, perhaps most
importantly, the President was given sole authority to issue exemptions to any
merchant vessel he chose and to enforce the terms of the embargo through
instructions to the Navy and the Revenue-Marine. While these latter provisions
entailed a potentially substantial enlargement of the prerogatives at the
disposal of the office of President – even granting the Executive Branch
significant influence over the state of the American economy – the
aforementioned belief held by Jefferson and his supporters that Britain in
particular was absolutely dependent on access to the American market doubtless
assuaged any doubts they might have held as to the consistency of their
actions. Perhaps the terms of the Embargo Act did contain the seeds of of a
more expansive reading of presidential authority than the
Democratic-Republicans tended to endorse, but surely they weren’t going to be
in force long enough for this to become a problem.
One can only
hope that Thomas Jefferson appreciated the irony of the situation when the
ingenuity which he so often praised as a quality peculiar to the American
character was swiftly turned to the task of evading the terms of his pet
legislation. With New England’s shipping industry, mercantile Middle Atlantic
states like New York and Pennsylvania, and the agricultural South all suffering
for the sudden lack of markets for their goods and services, the need to find
loopholes in the text of the Embargo Act on the part of an economically
strained population became a matter of some urgency. As was the case during the
Anglo-American crisis of the 1760s and 1770s when British commercial restrictions
met with disapproval in the American colonies – another stroke of irony one
hopes Jefferson saw clearly enough to appreciate –smugglers accordingly rose to
occasion by taking advantage of the freedoms still afforded to certain specific
types of seagoing vessels. Ships travelling down the Atlantic coast from
British Canada, for instance, were still permitted to make port in the United
States, thus providing for some degree of continued British access to at least
the American consumer market. And at the same time, American whaling and
fishing vessels were able to turn their own liberty to account – being free,
still, to navigate as they saw fit without even the need to post bond or submit
to inspection – by diverting to British ports in the North Atlantic and the
West Indies before returning home and offloading their contraband cargo. Notwithstanding
these individual efforts, of course, the American economy still suffered in the
meantime. Merchant ships sat idle in deserted wharves while farmers struggled
to find buyers for their produce. Britain and France remained unmoved.
Jefferson’s
response to this initial failure, as it happened, was not to conclude that the
whole idea of an embargo was somewhat misplaced, or that there might have been
a better means of seeking redress. On the contrary, he and his supporters in
Congress concluded that what was called for was the application of even greater
force to the problem at hand. An act of Congress supplementing the terms of the
embargo was accordingly passed in January 1808, the terms of the which sought
to close the aforementioned loopholes and apply harsh punishments to alleged
smugglers. Previously unmolested fishing and whaling vessels were now required
to post bond on the same terms as merchant vessels trading between American
ports, fines were permitted to be levied upon foreign ships found to be loading
cargo for export, with seizure of said cargo permitted as necessary, and
violation of either the Embargo Act itself or the supplementary act were
declared to be a criminal offense. The relevant punishments ranged from the seizure
of ship and cargo, to fines ranging up to double the value of the same, to the
forfeiture by offending captains of the ability to swear an oath before a
customs officer. The results, at a stroke, were substantial. American access to
global markets was diminished even further, more shipowners were forced to
purchase bonds for their vessels, and potentially thousands of Americans whose
only offense was seeking to sustain their chosen livelihood were transformed by
legislative fiat into criminals liable to have their personal property
confiscated by the federal government.
Shockingly
enough, this effort likewise met with failure. The coming of the spring thaw expanded
the number of shipowners and industries directly impacted by the loss of market
access to such a degree that the beginnings of an economic downturn quickly
blossomed into a full-blown depression. As more and more people were thrown out
of work, protests became increasingly common in the commercial areas of the
Atlantic seaboard, and soon enough many of the affected merchants began to
ignore the offending laws entirely. Upstate New York and parts of Maine in
particular became hotbeds of illicit trade, made possible by the land borders
these regions shared with British-controlled Quebec and New Brunswick. Yet
still convinced that their initiative had merit, however, Jefferson and his
allies proceeded with a second raft of supplementary regulations. This new act
of Congress, approved on March 12, 1808 and somewhat verbosely referred to as,
“An Act in addition to the act, intituled "An act supplementary to the
act, intituled an act laying an embargo on all ships and vessels in the ports
and harbors of the United States [,]” went so far as to prohibit any and all
exports by land or sea from the American republic. The relevant, “Vessel, boat,
raft, cart, wagon, sleigh, or other carriage, in which the same shall have been
exported […] together with the tackle, apparel, horses, mules, and oxen” were
to be subject to immediate forfeiture on evidence of violation, and all
persons, “Knowingly concerned in such prohibited exportation” were to pay a sum
not exceeding ten thousand dollars by way of penalty. The terms thereof also
provided for the more rigid enforcement of the aforementioned surety bond
requirements of the Embargo Act, placed stiffer penalties on fishermen proven
to have sold some part of their catch or supplies to foreign buyers, and
further widened the latitude enjoyed by the President to grant or deny
exemptions to such vessels as he chose.
By now, the
astute reader should be able to recognize a pattern when they see one. As when
Congress approved the original Embargo Act and its first supplementary act, the
implementation of a second supplementary act had rather the opposite effect to
what President Jefferson intended. Broad swaths of the economy continued to
suffer for their lack of access to foreign markets, smuggling continued to
flourish in regions well-placed to take advantage of their proximity to foreign
territory, and neither Britain nor France seemed in the slightest bit affected.
On the contrary, British merchants benefited massively from the sudden
disappearance of American competitors in the aforementioned carrying trade and
British manufacturers were able to compensate for the loss of American
consumers by seeking new markets in South America. Notwithstanding the manifest
ineffectiveness of what he had doubtless come to think of as his enlightened
alternative to war, however, Jefferson proceeded with yet another supplement to
the terms of the Embargo Act. This latest piece of legislation, approved by
Congress on April 25th, 1808, was by far the most draconian of any
passed thus far. On the domestic side, federal customs collectors were
authorized to detain any vessels present in American ports which, “In their
opinions [,]” seemed likely to violate the terms of the embargo and to seize
such “unusual” provisions – “Lumber, or other articles of domestic growth or
manufacture” – as were deposited at American port facilities, “adjacent to the
territories, colonies, or provinces of a foreign nation [.]” More broadly, the
commanders of American naval vessels and revenue cutters were also empowered
to,
Stop and examine any vessel, flat, or
boat, belonging to any citizen of the United States, either on the high seas,
or within the jurisdiction of the United States, or any foreign vessel within
the jurisdiction of the United States, which there may be reason to suspect to
be engaged in any traffic or commerce [...] contrary to the provisions of this
act [.]
That these
provisions collectively represented a fairly alarming development would seem to
have more than anything else to do with their relationship to the terms of the
Fourth Amendment.
Approved by Congress in 1789,
ratified by the states in 1791, and certified as an integral part of the United
States Constitution in 1792, the Fourth Amendment states, in full, that,
The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
While the exact circumstances
in which a given search or seizure qualifies as reasonable or unreasonable has
been the subject of much debate and litigation in the two centuries that have
since elapsed, the broad significance of the text in question has remained more
or less unchanged. Arbitrary searches and seizures are forbidden except in
cases of exceptional government interest and warrants are only to be granted
upon presentation of probable cause to the proper judicial authorities. Bearing
these principles in mind, it would accordingly seem a matter of some concern
that none of the legislation cited above claiming to authorize the search or
confiscation of private property made any mention of either the need for
warrants or such conditions as would have obviated the same. In some cases, in
must be said, this may have simply been a matter of convenience. Rather than
spell out the procedure by which the appropriate agents might seek and produce
a search warrant for the purpose of accomplishing their assigned tasks, the
authors of the relevant supplemental legislation may instead have just assumed
that the terms of the Fourth Amendment would apply regardless. Granted, “I
think that ship might engage in foreign trade at some point” would seem
something of a stretch in terms of probable cause, as would, “That pile of
lumber there looks rather suspicious.” All the same, it would at least have
been possible for the federal officials so deputized by the terms of the
various acts of Congress here discussed to seek and receive the appropriate
search warrants before beginning to seize and examine allegedly suspicious
ships and cargoes.
That being said, the authority
granted by the third supplementary act to the commanders of naval vessels and
revenue cutters would seem another thing entirely. Recall, for a moment, the
relevant terms of the cited legislation. The officers in question were to
possess the right to, “Stop and examine any vessel, flat, or boat, belonging to
any citizen of the United States, either on the high seas, or within the
jurisdiction of the United States [.]” A federal customs collector, being
suspicious of a vessel in their district, could reasonably secure the warrant
necessary to conduct a lawful search before said vessel set sail and departed. But
the commander of an American naval vessel or revenue cutter already under sail,
having spotted a civilian ship which they believed might be engaged in illicit
commerce, possessed no such means at their disposal. Upon sighting the suspect ship,
they must either act or let them be. They could not “stock up” on blanket
warrants before leaving port, such things being wholly illegal. And there
certainly wouldn’t be much point in attempting to dash to port to secure a
warrant in hopes that the ship in question remained where last seen. One can
only sensibly conclude, therefore, that the officers in question were expected
to proceed without warrants of any kind. The Jefferson Administration might
well have claimed that the circumstances of the moment rendered such
warrantless searches and seizures entirely reasonable. In point of fact,
however, no legal consensus then existed which would have validated such an
assertion.
This would more or less seem to sum
up the Jeffersonian approach to executive power in a nutshell. As a means of
resolving international disputes and avoiding armed conflict, the idea of an
embargo on American trade with the world at large was far from unreasonable in
concept. That Jefferson stopped short of declaring war on Britain in 1807
following the aforementioned incident off the Virginia coast rather does the
man credit, and there was certainly nothing in the terms of the original
Embargo Act which fell outside the powers possessed by either Congress or the
President. But then, when the policy failed to bear fruit – indeed, when it was
met by a fairly severe backlash – he and his supporters arguably lost their
heads. Having been, for over a decade, the foremost advocate for limited
government and the most vehement critic of arbitrary executive power, Jefferson
became increasingly convinced that the only way to enable the embargo to
achieve its desired effect was to make the prospect of violation as onerous as
possible and to throw as many federal resources as Congress would allow into
enforcement and prosecution. Fines were levied, searches and seizures were
authorized, military personnel were re-directed, and the economic liberty
previously enjoyed by the American people was rapidly and decisively curtailed.
Farmers and merchant were no longer permitted to dispose of their property as
they pleased, while shipbuilders weren’t permitted to do much of anything. The
economy suffered. The people became discontented.
More important to the present
discussion than the effects of the embargo, or course, are the means by which
the thing was accomplished. Congress, as aforementioned, unquestionably
possesses the authority to regulate foreign commerce. And there should likewise
be no uncertainty as to the ability of the President to command the American
Navy, or the Revenue-Marine, or federal customs officials to seek to accomplish
this or that objective. But could the President authorize warrantless searches
at sea? Did suspicion of wrongdoing alone constitute probable cause for the
seizure of private property? The various pieces of supplementary legislation
intended to support the effectiveness of the Embargo Act very much begged these
questions. But while Jefferson may have been the one asking them if the
Federalists had still been in power, in reality his actions followed exactly
the Federalist course. As he had himself in 1803, and as Washington and Adams
had during their own terms in office, the Sage of Monticello chose the path of
least resistance. Within striking distance – or so he thought – of a desirable
objective, Jefferson brushed aside his doubts and seized what it was he wanted.
Did the ongoing harassment of American commerce really constitute the kind of
emergency which would have made warrantless search and the seizure of private
property reasonable? As a private citizen, given his ideological bona fides,
Jefferson likely would have argued that it didn’t. But as President? Well, it
rather depended on what the people were willing to accept. Madison had said
exactly that in 1803. Given the, “magnitude of the object,” he’d said, in that
case referring to the Louisiana Purchase, it should have been left to, “The
candor of the country,” to decide what was or wasn’t acceptable. For better or
worse, Jefferson seemed to have internalized this sentiment in the intervening
years. If the American people believed it was within the President’s power to
proceed as he saw fit – as Washington had, as Adams had, and as Jefferson
himself had – that was as good as if his actions were legal and constitutional.
For the record – though it matters
little to the discussion at hand – Jefferson’s embargo did ultimately fail to
achieve the results he desired. By the end of his presidency in the spring of
1809, Congress had passed legislation preparing for the swift re-opening of
American trade as soon as the conflicts in Europe abated. In 1810, trade was
resumed anyway in spite the war still raging on the Continent. In June of 1812,
the British government finally repealed the Orders-in-Council that had led to
the harassment of American shipping to begin with. And later that same month,
since news of this conciliatory gesture had yet to reach Washington, the United
States of America declared war on Great Britain. After five years and untold
damage to the American economy, the thing that Jefferson and his allies had been
hoping to avoid happened anyway. Indeed, it happened in large part at the
behest of other members of his party who were far less interested in avoiding
armed conflict. But while the war that followed ultimately proved to be
something of a turning point in the history of American political culture –
leading as it did to the destruction of the Federalists and the fracturing of
the Democratic-Republicans – the most significant implication of the embargo
itself lay in Jefferson’s wholehearted embrace of the very concept of executive
power.
Regardless of what Jefferson had maintained
throughout the first half of his professional career as a critic and opponent
of successive Federalist governments – his distrust of centralized authority,
his belief in strict constructionism, etc. – the events of the Washington and
Adams presidencies undeniably taught him an invaluable lesson. In the end,
whether or not a given action taken by the Executive Branch was precisely
authorized by the Constitution mattered somewhat less than whether or not the
American people were willing to tolerate it being done. If enough of them
approved of a thing – or at least with the end results – then it didn’t really
matter that certain laws had been broken or that a significant portion of them
were wholly opposed. Jefferson may have denied his faith in the efficacy of
this maxim if confronted, but his actions while in office spoke very much to
the contrary. Just as Caesar paved the way for Caligula, who made things that
much easier for Nero, so Washington had made possible the actions of his
successor Adams, who in turn made way for the opportunities seized upon by
Jefferson. No one man, in either context, wholly transformed the state they
led, or seized every power that would at length devolve upon their office. But
each of them, seeking after an objective they deemed desirable, did something
to expand both the practical authority immediately at their disposal as well as
the popular understanding of the limits of the same. George Clinton, author of
Cato V – the subject, one hastens to recall, of the present discussion – saw
this clear enough in 1788 when he cautioned his countrymen against believing
tyranny an impossible outcome in the United States of America. He could not
have known how right he would prove to be, of course, between the presidencies
of George Washington and Thomas Jefferson. But right, indeed, he was. The
American republic may not have become a rigidly centralized autocracy in the
span of twenty years, but successive presidents did steadily accrue more and
more practical power. Washington – though far less egotistical and far less
ambitious – was indeed like Caesar for the way he set this trend in motion. And
Jefferson – though far more principled – was like Caligula and Nero for the way
he built upon the legacy of his predecessors while pursuing an agenda of his
own. Did someone arrive thereafter to complete the cycle envisioned by Clinton?
Was there, at length, an American Domitian? Yes, in short, there very much was.
His name was Andrew Jackson.
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