Page:Henry Adams' History of the United States Vol. 4.djvu/278

268 proper for carrying out its purpose; and finally, to vest in the President discretionary power to execute or to suspend the system, in whole or in part.

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."