Part 21

Thus far I have considered that part of the bill which provides for privateers against the Rebels; but I cannot quit this branch of the question without calling attention again to the scenes that must ensue, if these privateers are let loose. Picture to yourselves the ocean traversed by licensed rovers seeking prey. The Dutch admiral carried a broom at his mast-head as the boastful sign that he swept the seas. The privateer might carry a scourge. Wherever a sail appears, there is chase; the signal gun is fired, and the merchantman submits to visitation and search. Delay is the least of the consequences. Contention, irritation, humiliation ensue, all calculated to engender ill-feeling, which, beginning with individuals, may embrace country and government. I do not say that such an act, even harshly exercised upon neutral commerce, will bring upon us further war, but I would not try the experiment. The speaking-trumpet of a reckless privateer may contribute to that discord which is the herald of bloodshed itself.

But, Sir, even if you think it worth while to authorize privateers against the Rebels, to cruise against an imaginary commerce, in quest of an imaginary booty, why not stop there? The measure would not be wise, but it might find seeming apology in the present condition of affairs. The bill of the Committee, and also the amendment of the Senator from Iowa, go much further. It is a general bill, authorizing privateers, not merely against the Rebels, but also against foreign nations in future wars, in the discretion of the President. I quote from the bill of the Committee.

“That, whenever war exists or has been declared between the United States and any other nation, and during the present Rebellion, the President of the United States is hereby authorized to issue to private vessels of the United States commissions or letters of marque and general reprisal, in such form as he may think proper.”

Mark the language, “whenever war exists.” I am not ready to say that these words give the President power to declare the existence of war without the intervention of Congress; but I object to the whole clause on account of its generality. And the substitute of the Senator is obnoxious to the same objection. It says:--

“That, _in all domestic and foreign wars_, the President of the United States is authorized to issue to private armed vessels of the United States commissions or letters of marque and general reprisal, in such form as he shall think proper.”

This is a general provision, by which the President is authorized to issue letters of marque, not only to aid in putting down the present Rebellion, but also “in all domestic and foreign wars” which may occur hereafter. I will not say that any such general, prospective provision, although clearly a departure from that traditional policy which the Senator professes to uphold, is positively unconstitutional; but I am sure that it is contrary to the spirit of the Constitution. To me it seems obvious that the Constitution contemplated the special action of Congress on every occasion for the exercise of this power. This was the safeguard against excess or blunder. Such a power was not to be exercised hastily or inconsiderately, but with full and special consideration. It was not to be exercised all at once and in the lump, but as the exigency occurred in individual cases. And Congress, which was empowered to declare war, had the further power, in the same way and with similar solemnities, to give the war this additional feature, if, under the circumstances, it thought best. This great power was not handed over indefinitely to the President, to be wielded at will, but was lodged in Congress. If Congress is not insensible to the spirit of the Constitution, it will never hand it over to the President, as now proposed.

Even in England, where the power to declare war is lodged with the sovereign in council, it seems that in point of fact letters of marque are regulated by special Acts of Parliament on the breaking out of war. This is stated by Chitty, in his work on the Prerogatives of the Crown.

“By various statutes, _enacted during every war_, the Lord High Admiral, or the Commissioners of the Admiralty, are empowered to grant commissions, or, as they are also called, letters of marque and reprisals, to the owners of ships, enabling them to attack and take the property of his Majesty’s enemies, which statutes contain, also, various provisions as to the prizes captured. (See 29 George II. c. 34; 19 George III. c. 67; 43 George III. c. 160; 45 George III. c. 72.)”[140]

Obviously recognizing this principle, which is so entirely consistent with reason and that wisdom which is the strength of nations, our country thus far in its history has declined to pass any general prospective law authorizing letters of marque. This is our traditional policy, which the Senator seeks to overturn. The statute authorizing letters of marque in 1812 expired with the war. It was not general or prospective. Is there any reason now that we should depart from this policy? Is there any good to be accomplished by such departure? It is strange that at this moment, when other nations renounce privateering, we should rush forward and ostentatiously declare it part of our political system,--I might almost say, an element of our political life. Pray, if this declaration were of such importance, why has it been so long postponed? Generations, jealous guardians of all our national rights, have passed away, leaving the statute-book without any such voice. It did not occur to them that the national defence or the national honor required it. And yet the discovery is suddenly made that this is a mistake, or that our predecessors were all wrong, especially in not announcing to the world that in the event of war privateers will be let loose.

As there is no foreign war in which we are now engaged, this provision is prospective and minatory, so far as foreign nations are concerned. It is notice to avoid any question with us, under penalty of depredations by privateers. If not a menace, it is very like one. I do not know that it will be so interpreted by those to whom it is addressed, but I am sure that it can do no good; and just in proportion as it is so interpreted, it will be worse than useless. A menace is as ill-timed between nations as between individuals.

I do not dwell now on the irrational character of privateering, but I seize the occasion to declare my deliberate judgment that our country may yet find, to its cost, that this cherished weapon is a two-edged sword. A nation with an extensive commerce cannot afford to invite the hazard of its employment. Thus, in the event of war with a power inferior to ourselves in commerce, as Portugal, or Spain, or France, the increased rates of insurance would make it impossible for us to keep our ships afloat, while all our profits on the ocean would be appropriated by those nations happily still at peace. The very superiority of our commerce would be a disadvantage, inasmuch as we should be more exposed. For instance, in a war with Portugal or Spain we should stake gold against copper, and even in a war with France it would be gold against silver. If this prospect pleases, then Senators will vote for a measure which may be called _Privateering made easy; or, how to do it without Congress_.

Nor do I discuss the immorality and brutality too naturally engendered by a system whose inspiration is booty. Here I content myself with the words of General Halleck, in his excellent summary of International Law.

“But, even with these precautions, privateering is usually accompanied by abuses and enormous excesses. The use of privateers, or private armed vessels under letters of marque and reprisal, has often been discussed by publicists and text-writers on International Law, and has recently been made the subject of diplomatic correspondence and negotiation between the United States and the principal European powers. The general opinion of text-writers is, that privateering, though contrary to national policy and the more enlightened spirit of the present age, is, nevertheless, allowable under the general rules of International Law. _It leads to the worst excesses and crimes, and has a most corrupting influence upon all who engage in it_, but cannot be punished as a breach of the Law of Nations. _The enlightened opinion of the world is most decidedly in favor of abolishing it_, and recent events lead to the hope that all the commercial nations of both hemispheres will unite in no longer resorting, in time of war, to so barbarous a practice.”[141]

There is another American authority I ought not to omit. I refer to Chancellor Kent, who in his much quoted Commentaries has recorded his judgment. If I chose to cross the ocean, I might add indefinitely to this testimony; but I confine myself to our own countrymen, so that you shall see privateering as judged by Americans. Here are the words of the great jurist.

“As a necessary precaution against abuse, the owners of privateers are required, by the ordinances of the commercial states, to give adequate security that they will conduct the cruise according to the laws and usages of war and the instructions of the Government, and that they will regard the rights of neutrals, and bring their prizes in for adjudication. These checks are essential to the character and safety of maritime nations. _Privateering, under all the restrictions which have been adopted, is very liable to abuse._ The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, _and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce_. They are sometimes manned and officered by foreigners, having no permanent connection with the country, or interest in its cause. This was a complaint made by the United States, in 1819, in relation to irregularities and acts of atrocity committed by private armed vessels sailing under the flag of Buenos Ayres. _Under the best regulations, the business tends strongly to blunt the sense of private right and to nourish a lawless and fierce spirit of rapacity._”[142]

It is well known that these were the sentiments of the founders of our Republic, which, in its early treaty with Prussia, took the lead in denouncing the whole system of privateering. Is it not better to follow this example, until positive, irresistible exigencies of war compel us to depart from it? If we cannot do this, let us at least keep from affording new facilities to an offensive system. What our country denounced in other days should not now be proclaimed and glorified.

MR. GRIMES. The Senator will allow me to inquire when it was that this nation denounced the system of privateering.

MR. SUMNER. By the treaty of 1785.

MR. GRIMES. The Prussian treaty, I suppose.

MR. SUMNER. The Prussian treaty.

MR. GRIMES. I should like to know the purport of that denunciation. Was it not a mere stipulation that we should not prey on the commerce of that nation?

MR. SUMNER. It was a stipulation to the effect, that, in any war between the United States and Prussia, neither party should commission privateers to depredate on the commerce of the other.

MR. GRIMES. A stipulation that I suppose this Government could very easily make, because Prussia has no commerce.

MR. SUMNER. I wish the treaty had been such as to afford a stronger example; but it must be accepted as the judgment of our country at that time; and to my mind it is a practical denunciation of privateering, worthy of the illustrious character by whom it was negotiated, who was none other than Benjamin Franklin. But this treaty is not all. I do not forget how Jefferson wrote to France, “The benevolence of this proposition is worthy of the nation from which it comes, and our sentiments on it have been declared in the treaty to which you are pleased to refer, as well as in some others which have been proposed,”[143] thus testifying to our treaty and to his own sentiments; and, at a later day, that John Quincy Adams, in his instructions to Mr. Rush, of July 28, 1823, directing him to negotiate a treaty with Great Britain for the abolition of privateering, declared that this was “an object which has long been dear to the hearts and ardent in the aspirations of the benevolent and the wise, an object essentially congenial to the true spirit of Christianity”; and he adopted the earlier declaration of Franklin, “It is time, it is high time, for the sake of humanity, that a stop were put to this enormity.”[144]

MR. GRIMES. I am speaking now of the declaration which the Senator has seen fit to designate as a national denunciation of privateers, made in 1785, though the Constitution, which was made in 1787, expressly reserved to Congress the power to issue letters of marque and reprisal. Taking these two facts, the treaty made in 1785 and the Constitution made in 1787, how can it be asserted that the ancient policy of the Government is against privateering, and that we have nationally denounced it?

MR. SUMNER. The Senator will pardon me, if I say that I know no better denunciation than that of a treaty negotiated by Franklin. A treaty is the act of the nation, and testifies to the sentiments of the nation. If the same denunciation did not find place in more important treaties, it is reasonable to suppose that it was not acceptable to the other contracting parties. It is an historic fact, that Franklin sought to embody this denunciation in the very treaty by which our independence was acknowledged, and thus to associate it with our national being.[145] Indeed, it was a standing offer from our Government to foreign powers.[146] Unquestionably the Constitution gives Congress the power to issue letters of marque, but the reason is obvious: because privateering was recognized at that time as a proper agency of war. The framers of the Constitution did not divest the government they created of a power which belonged to other governments according to the existing usage of nations. In recognizing this power, they express no opinion upon its character. For that we must go to the treaty, and to the words and efforts of Franklin, Jefferson, and John Quincy Adams, speaking and acting officially for the nation,--all but Franklin subsequent to the Constitution.

And now, Sir, at the risk of repetition, I enumerate my objections to this bill.

1. It proposes to cruise against a non-existent commerce, for the sake of a non-existent booty.

2. It accords to private individuals the belligerent right of search, which must be fruitful of trouble in our relations with the great neutral powers.

3. It gives to the President, in his discretion, the power to issue letters of marque in any future wars, without any further authority of Congress, when this power should always wait for the special authority of Congress on the declaration of war.

4. It is in the nature of a menace to foreign nations, and therefore worse than useless.

5. It vitalizes and legalizes a system which civilization always accepted with reluctance, and our own country was one of the earliest and most persistent to denounce.

6. It will give us a bad name in history.

It does all this without accomplishing any substantial good. If it be said that ships are needed for transportation, or for the blockade, or in order to pursue pirates on the sea, then, I repeat, let the Government hire them. The way is easy, and it is also the way of peace. To this end I offer a substitute for the present bill, which will secure to the Government all the aid it can desire, without the disadvantage or shame of a measure which can be justified only by overruling necessity. I will read the substitute.

“That the Secretary of the Navy be authorized to hire any vessels needed for the national service, and, if he sees fit, to put them in charge of officers commissioned by the United States, and to give them in every respect the character of national ships.”

If Senators desire a militia of the seas, here it is,--a sea militia, precisely like the land militia, mustered into the service of the United States, under the command of the United States, and receiving rations and pay from the United States, instead of sea-rovers, not mustered into the national service, not under national command, and not receiving rations or pay from the nation, but cruising each for himself, according to his own will, without direction, without concert, simply according to the wild temptation of booty. Such a system on land would be rejected at once. Nobody would call it a militia. Do not sanction it now on the ocean; or, if you are disposed to sanction it, call it not a militia of the seas.

The bill was then amended, on motion of Mr. Sherman, by limiting it to “three years from the passage of this Act.”

Mr. Sumner then moved to strike out the words “in all domestic and foreign wars,” and to insert “to aid in putting down the present Rebellion,” so that it would read,--

“That, _to aid in putting down the present Rebellion_, the President of the United States is authorized to issue to private armed vessels of the United States commissions,” &c.

On this motion he remarked:--

MR. PRESIDENT,--The question is now presented precisely, whether the Senate will confine this bill in operation to the war in which we are actually engaged for the suppression of the Rebellion, or make it prospective in character, applicable to some war in the unknown future, to some country not named, to some exigency not now understood, and therefore, in its nature, a notice or warning, if not a menace, to all countries.

This is the precise question: Shall the bill be confined to our own time, to this day, to this hour, to something we can see, to what is actually before us; or shall it be extended also to the future, to something we cannot see, to what is not actually before us, and with regard to which we can have no knowledge, unless we listen to our fears?

If the words are introduced as a menace, then are they out of place and irrational. Suppose any such words in the legislation of Great Britain or France at a moment when they might be interpreted as applicable to us, who can doubt their injurious effect upon public opinion here? A brave and intelligent people will not bend before menace, nor can any such attempt affect a well-considered national policy. All history and reason show that such conduct is more irritating than soothing. Sir, if you are in earnest, as I cannot doubt, to cultivate those relations of peace and good-will with foreign nations which are in themselves a cheap defence, you must avoid all legislation which can be misinterpreted, especially everything which looks like menace.

I cannot pretend to foresee the future. I know not that other wars may not be in store for us, that we may not be called to confront other powers, in alliance, perhaps, with our Rebels, and to make still greater efforts. All this may come; but I pray not. If it does come, then let us meet its duties and responsibilities like Senators; but do not rush forward recklessly, like the bully with his bludgeon, ready to strike wherever there is a head. I do not believe in such legislation; nor do I believe in any legislation providing new facilities for a war, or tending to produce irritation and distrust. Prepared always for the future, I would not challenge it. Preparation and provocation are widely different. Nor would I do anything out of season. There was characteristic wisdom in the remark of the venerable Chief Justice of England, Sir Matthew Hale, when he said that “we must not jump before we get to the stile.” It seems to me that Senators who are pressing this bill forget this time-honored injunction, and try to make their country take a jump prematurely.

…

You have just listened to the Senator from California [Mr. MCDOUGALL], announcing that perhaps before the next meeting of Congress there may be foreign war; and you have not forgotten his elaborate speech only the other day, when he openly challenged war with France. I ask Senators, if, at this critical moment, they are ready to follow him in his effort to carry us in that direction. For myself, I protest against it. I am heart and soul for putting down this Rebellion without playing into the hands of Rebels. Now it must be plain to all that every word calculated to draw or drive any foreign government into alliance with the Rebellion does play into the hands of Rebels. Senators may be willing to distract the attention of the country from our single object, to impair the national force, and help surrender all to the uncertainties and horrors of accumulating war. Let me not enter into their counsels. It is not my habit to shrink from responsibility; personal risks I accept willingly; but I confess anxiety that my country should not rush abroad in quest of new dangers, whose only effect will be to increase the national calamities.

The amendment of Mr. Sumner was lost,--Yeas 13, Nays 22.

Mr. Sumner then moved to strike out the words authorizing the President to “make all needful rules and regulations,” and to insert--

“The provisions of the Act of Congress, approved on the 26th day of June, 1812, entitled ‘An Act concerning letters of marque, prizes, and prize goods,’ and of the Act of Congress, approved on the 27th day of January, 1813, entitled ‘An Act in addition to the Act concerning letters of marque, prizes, and prize goods,’ are hereby revived, and shall be in force in relation to all that part of the United States where the inhabitants have been declared in a state of insurrection, and the vessels and property to them belonging.”

Mr. Sumner explained the amendment.

It will be observed, that, by the amendment already adopted, the President alone, without the coöperation of Congress, is empowered to make what are called all needful rules and regulations for the government and conduct of these privateers, and for the adjudication and disposal of prizes and salvages made by them. But formerly it was not so ordered. No such large power was ever before vested in the President. By the statute of June 26, 1812, a system was provided, in seventeen sections, for the government of letters of marque, prizes, and prize goods. These sections relate to the formalities required from persons applying for letters of marque, the bonds to be given, and the sureties, how the captured property shall be forfeited, the distribution of the prize money, the distribution of salvage, how the prize shall be brought in for adjudication, regulations concerning prisoners found on board of prize vessels, instructions for the privateers, bounty for destroying the enemy’s vessels, instructions to the commanding officers of privateers to keep journals, how owners of privateers are punishable for violating the revenue laws of the United States, how offences on board private armed vessels are punishable; also the commissions of collectors and consuls upon prize goods, and the uses to which they shall be applied. Here is a statute, in itself a code, containing provisions exclusively applicable to these important matters, all determined by Congress in advance; but it is now proposed that Congress shall abdicate, leaving to the President alone this large power.