“Congress has power to declare war. It of course has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. Foreign intercourse becomes in such times a subject of peculiar interest, and its regulation forms an obvious and essential branch of federal administration.... It seems to have been admitted in the argument that State necessity might justify a limited embargo, or suspension of all foreign commerce; but if Congress have the power, for purposes of safety, of preparation, or counteraction, to suspend commercial intercourse with foreign nations, where do we find them limited as to the duration more than as to the manner and extent of the measure?” Against this remarkable decision Dexter did not venture to appeal. Strong as his own convictions were, he knew the character of Chief-Justice Marshall’s law too well to hope for success at Washington. One of Marshall’s earliest constitutional decisions had deduced from the power of Congress to pay debts the right for government to assume a preference over all other creditors in satisfying its claims on the assets of a bankrupt.[226] Constructive power could hardly go further; and the habit of mind which led to such a conclusion would hardly shrink from sustaining Judge Davis’s law. Yet the embargo, in spite of Executive, Legislative, Judicial, and State authorities, rankled in the side of the Constitution. Even Joseph Story, though in after life a convert to Marshall’s doctrines, could never wholly reconcile himself to the legislation of 1808. “I have ever,” he wrote, “considered the embargo a measure which went to the utmost limit of constructive power under the Constitution. It stands upon the extreme verge of the Constitution, being in its very form and terms an unlimited prohibition or suspension of foreign commerce.”[227] That President Jefferson should exercise “dangerous and odious” powers, carrying the extremest principles of his Federalist predecessors to their extremest results; that he should in doing so invite bloodshed, strain his military resources, quarrel with the State authorities of his own party and with judges whom he had himself made; that he should depend for constitutional law on Federalist judges whose doctrines he had hitherto believed fatal to liberty,--these were the first fruits of the embargo. After such an experience, if he or his party again raised the cry of State-rights, or of strict construction, the public might, with some foundation of reason, set such complaints aside as factious and frivolous, and even, in any other mouth than that of John Randolph, as treasonable. FOOTNOTES: [195] Proclamation of April 19, 1808; Annals of Congress, 1808-1809, p. 580. [196] New York Evening Post, May, 1808. [197] National Intelligencer, May 23, 1808. [198] Jefferson to Gallatin, May 6, 1808; Works, v. 287.