Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.). United States. Congress

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СКАЧАТЬ Without that consideration I should now be in retirement. But when I turn my eyes upon internal divisions, discontents and violations of law, and am compelled to think of measures for their suppression, it produces the most painful sensations and distressing reflections.

      The great principle of objection, the gentlemen tell us, consists in the transfer of legislative powers to the Executive Department. This is an old an abstract question, often heretofore brought into view, and leads to endless discussion. I think I shall be able to show that the bill introduces no new principle in this respect, but only applies an established principle to new practical objects. The general principle of the separation of departments is generally admitted in the abstract; but the difficulties in this discussion arise from applying the principle to practical objects. The great difficulty exists in the attempt to fix on the precise boundary line between legislative and Executive powers in their practical operation. This is not possi-1 You might attempt the search for the philosopher's stone, or the discovery of the perpetual motion, with as much prospect of success. The reason of this difficulty is, that the practical objects and events to which this abstract principle is attempted to be applied, are perpetually varying, according to the practical progression of human affairs, and therefore cannot admit of any uniform standard of application. This reflection might have saved the gentleman from Massachusetts (Mr. Lloyd) the trouble of reading to us the constitution or bill of rights of Massachusetts, in which the principle of separation of departments is very clearly and properly laid down, and which will be very readily assented to in the abstract, but which forms no part of the question in dispute. It cannot, however, escape observation, that this principle is not laid down, even in the abstract, in the Constitution of the United States; and, although it is the leading principle of the constitution, and probably was the principal guide in its formation, it is nevertheless in several respects departed from.

      This body partakes essentially both of the legislative and Executive powers of the Government. The Executive Department also partakes of the legislative powers, as far at least as an approbation of, and a qualified negative of the laws extend, &c. I make these observations, however, not in derogation of the general principle of the separation of powers among the several departments, so far as is practicable, but merely to show that there must necessarily be some limitations in its practical operation. Perhaps the best general rule for guiding our discretion upon this subject will be found to consist in this: That legislation ought to extend as far as definition is practicable – when definition stops, execution must necessarily begin. But some of the particular provisions of this bill will furnish more precise illustrations of my opinions upon this question; it will, therefore, be waived until I shall come to their consideration.

      I will now proceed to examine the more particular objections urged against the detail of this bill. Its provisions respecting the coasting trade are said to be objectionable in the following respects:

      First objection: The penalty of the bonds required, is said to be excessive. To enable us to decide correctly upon this point, the object proposed to be effected, and the penalty required, should be considered in reference to each other. The object is to prevent, by means of coasting vessels, domestic articles from being carried abroad. Flour, for instance, to the West Indies. The price of that article here is less than five dollars; in the West Indies it is said to be thirty and upward. The penalty of the bonds required is six times the amount of the value of the vessel and cargo. Is any gentleman prepared to say a smaller penalty will effect the object? I presume not. Indeed, the committee were disposed to put it at the lowest possible point, consistently with an effectuation of the object; and probably it is rather too low for that purpose. As to the penalty, according to the tonnage of vessels, it is believed no alteration in the existing laws is made in that respect. These penalties will appear the more reasonable, when it is recollected, that through the indulgence given of the coasting trade, most of the violations of the embargo laws have been contrived and effected.

      Second objection: The collectors may be influenced by party spirit in the exercise of their discretion. It is hoped that this will not be the case, and if it were, it would certainly be much to be regretted. It may, however, probably happen, and is one of the inconveniences of the system.

      Third objection: The high penalties of the bonds will drive many persons of small means from their accustomed occupations. They will not be able to procure the competent security for their prosecution. It is not to be presumed that this will be the effect to any great extent. If the owner is known to be honest, and has in view legal and honest objects, I have very little apprehension of his not being able to get the security required. But here the question recurs, are these apprehended inconveniences of such a nature as to render it necessary to abandon a great national object, for the accommodation of a few individuals who are affected by them? Is the last effort to preserve the peace of the nation, to be abandoned from these considerations? I should conclude, certainly not.

      The next objections are made to the seventh section of the bill, which provides that stress of weather, and other unavoidable accidents at sea, shall not be given in evidence in a trial at law to save the penalty of bonds given as security against the violation of the embargo laws. It is known that, through pretexts derived from this permission, at present, most of the violations of these laws have been committed with impunity – it is, therefore, important to the future execution of the laws, to take away these pretexts. But it is objected that this regulation manifests a distrust of oaths. It does, of what is called custom-house oaths; their violation is already almost proverbial; it does not, however, produce nor encourage this profligacy; it takes away the temptation to it. It is further said, it impairs the trial by jury – very far from it; the trial by jury still exists; this provision only regulates the evidence to be produced before the jury. Gentlemen state particular hardships which may take place under this regulation. It is easy to state possible hardships under any general regulation; but they have never been deemed sufficient objections to general regulations producing in other respects beneficial results. This bill, however, contains a provision for relief in all cases of hardships under the embargo laws. The Secretary of the Treasury is authorized to grant relief in all such cases. This power, vested in the Secretary, is also objected to. It is said to manifest a distrust of courts, and to transfer their powers to the Secretary of the Treasury. Whatever may be my distrust of some of the courts of the United States, I can say that consideration furnished no inducement to this provision. It is a power not suited to the organization of courts, and it has for a long time been exercised by the Secretary of the Treasury without being complained of. Congress proceeded with great caution on this subject. On the third day of March, 1797, they first introduced this principle into their laws in relation to the collection of the revenue; and, after an experiment of nearly three years, on the eleventh day of February, 1800, they made the law perpetual. This will appear from the 12th section of this bill, which merely borrows this provision from pre-existing laws. It introduces no new principle whatever. This doctrine is carried still further, by an act passed the 3d of March, 1807, in the eighth volume of the laws, page 318:

      "An Act to prevent settlements being made on lands ceded to the United States, until authorized by law.

      "And it shall moreover be lawful for the President of the United States to direct the Marshal, or officer acting as Marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force as he may judge necessary and proper, to remove from lands ceded, or secured to the United States by treaty, or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make or attempt to make a settlement thereon, until authorized by law."

      Here the President is authorized to use the military force to remove settlers from the public lands without the intervention of courts; and the reason is, that the peculiarity of the case is not suited to the jurisdiction of courts, nor would their powers be competent to the object, nor, indeed, are courts allowed to interfere with any claims of individuals against the United States, but Congress undertakes to decide upon all such cases finally and peremptorily, without the intervention of courts.

      This part of the bill is, therefore, СКАЧАТЬ