The Judiciary had still to be consulted. In the September Term, 1808, an embargo case was argued at Salem before John Davis, judge of the District Court for Massachusetts; and Samuel Dexter, the ablest lawyer in New England, urged the constitutional objections to the embargo with all the force that ability and conviction could give. No sounder Federalist than Judge Davis sat on the bench; but although the newspapers of his party were declaiming against the constitutionality of the law, and although Chief-Justice Parsons, of the Massachusetts Supreme Court, the most eminent legal authority in the State, lent his private influence on the same side, Judge Davis calmly laid down the old Federalist rule of broad construction. His opinion, elaborately argued and illustrated, was printed in every newspaper. “Stress has been laid in argument,” he said, “on the word ‘regulate,’ as implying in itself a limitation. Power to ‘regulate,’ it is said, cannot be understood to give a power to annihilate. To this it may be replied that the Acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree or extent of the prohibition be adjusted but by the discretion of the national government, to whom the subject appears to be committed.” In the Federalist spirit the Judge invoked the “necessary and proper” clause, which had been the cloak for every assumption of doubtful powers; and then passed to the doctrine of “inherent sovereignty,” the radical line of division between the party of President Washington and that of President Jefferson:-- “Further, the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but the national right or power to adapt regulations of commerce to other purposes than the mere advancement of commerce appears to me unquestionable.” After drawing these conclusions from the power to regulate commerce, the Judge went a step further, and summoned to his aid the spirits which haunted the dreams of every true Republican,--the power of war, and necessity of State:--