LETTERS OF MARQUE AND REPRISAL.

SPEECHES IN THE SENATE, ON THE BILL TO AUTHORIZE THE PRESIDENT, IN ALL

DOMESTIC OR FOREIGN WARS, TO ISSUE LETTERS OF MARQUE AND REPRISAL,

FEBRUARY 14 AND 17, 1863.

At the close of the preceding session of Congress, Mr. Grimes

introduced a bill concerning Letters of Marque and Reprisal,

but he was unable to secure the action of the Senate upon it.

January 7, 1863, he again asked for its consideration, when, on

motion of Mr. Sumner, it was referred to the Committee on Naval

Affairs. January 20th, it was reported from the Committee by

Mr. Hale, with amendments. February 14th, Mr. Grimes moved to

proceed with its consideration. In opposing this motion, Mr.

Sumner said:--

MR. PRESIDENT,--It seems to me that this bill is in all respects a

misconception. There is nothing now to justify letters of marque and

reprisal; and when Senators say that Massachusetts is interested in

their issue, I repel the suggestion. Sir, Massachusetts is interested

in putting down the Rebellion. She is also interested in clearing

the sea of pirates. Such is her open and unquestionable interest,

and to this end she is concerned in the employment of all possible

agencies consistent with the civilization of our day. Massachusetts is

interested in the enlargement of the marine, national and private, and

I add, also, in the present enlistment of the private marine in the

national service; but this is very different from the issue of letters

of marque.

…

I think the Senator from Iowa is misled by a phrase. He speaks

of the militia of the sea. It is a captivating phrase, I admit;

but the meaning is not entirely clear. The Senator finds it in

privateers,--that is, private armed ships, belonging to private

individuals, under the command of private persons, cruising against

private commerce, and paid exclusively by booty. Such is his idea of

a sea militia. I confess this is not very captivating to me. My idea

of a sea militia is different. It is all the ships of the country,

if the occasion require, under the national flag, in the service of

the country as national ships, with the character of national ships,

enjoying everywhere the immunities of national ships, and free from the

suspicions always attaching to the privateer, wherever it appears. An

enactment, authorizing the employment of the mercantile marine in the

national service as part of the national navy, would be practical and

reasonable. Such a marine might justly be called the militia of the

sea; but I must protest against the deceptive militia of the Senator.

The bill was taken up by a vote of 31 yeas and 6 nays; but,

after ordering the printing of amendments, it was postponed.

February 17th, it was taken up again, when Mr. Sumner spoke in

reply to Mr. Grimes.

MR. PRESIDENT,--The Senator from Iowa [Mr. GRIMES], who has just taken

his seat, ingeniously and elaborately vindicates a bill which, at

least in one feature, is an innovation upon the original policy of our

country; and, strange to say, while doing so, he pleads for what he

calls our traditional policy. I, too, plead for our traditional policy,

but not the policy of the Senator. And I plead also for a policy which,

whether traditional or not, will provide for the national defence

according to that best economy which takes counsel of prudence as well

as of courage.

The Senator, with seeming triumph, asks if we can afford to declare

that our whole private marine shall rot at the wharf. Clearly not,

and nobody proposes to declare so, although we might as well do this

as recklessly provoke war which must drive our commerce from the

ocean,--if in no other way, by the increased rates of insurance. I

would secure for our private marine the amplest opportunity, that it

may continue without interruption to plough every sea with its keels,

and that, wherever it appears, it may find its accustomed welcome. The

policy of the Senator has no such promise.

All will concur in any practical measure at this time for the increase

of our strength on the ocean. To this end my vote shall not be wanting.

But to my mind it is clear to demonstration that the measure proposed

is not practical in character, that it promises no result which cannot

be reached better in another way, while it is almost sure to bring upon

the country additional embarrassment. It may be bold, but I am sure it

is not prudent, nor is there in it economy of any kind.

This bill is entitled, “Concerning Letters of Marque, Prizes, and

Prize Goods.” The title is borrowed from the two statutes of 1812 and

1813. It is, in plain terms, a bill to authorize _Privateers_,--that

is, private armed vessels licensed to cruise against the commerce of

an enemy, and looking to booty for support, compensation, and salary.

It is by booty that owners, officers, and crews are to be paid. Booty

is the motive power and life-spring. Such is this bill on its face,

without going into detail. Surely a bill of this character ought not

to pass without strong reason.

Looking at the bill more closely, it is found to have two distinct

features: _first_, as a new agency against the Rebellion; _secondly_,

as a provision for privateers in any future war. I regard these two

features as distinct. They may be considered separately. One may be

right, and the other wrong. One may be adopted, and the other rejected.

So far as the bill promises substantial help in putting down the

Rebellion without more than countervailing mischief, it may properly

be entertained. But what can it do against the Rebellion? And where

is the policy or necessity on which it is founded? If Senators think

that the bill can do any good now, I am sure they listen to their hopes

rather than to the evidence. Why, Sir, the Rebels, against whom you

would cruise, are absolutely without commerce. Pirate ships they have,

equipped in England, armed to the teeth, and unleashed upon the sea

to prey upon us; but there is not a single bottom of theirs that can

afford the booty which is the pay and incentive of the privateer. It

would be hardly more irrational to enlist private armed ships against

the King of Dahomey.

I know it is said that our navy is too small, and that more ships

are needed, not only for transportation, but also to increase and

strengthen the blockade, or to cruise against pirates. Very well.

Hire them, and put them in commission as Government ships, with the

immunities, the responsibilities, and the character of such ships.

There can be no difficulty in this; and, better still, there will be no

difficulty afterwards. This is simple and practical.

But, while I see no probable good from launching privateers upon the

ocean to cruise against a commerce that does not exist, and to be paid

by a booty that cannot be found, I see certain evils which I am anxious

to avoid for the sake of my country, especially at this moment. I think

that I cannot be mistaken in this anxiety.

It is well known, that, according to ancient usage and the Law of

Nations, every privateer is entitled to belligerent rights, one of

which is that most difficult, delicate, and dangerous right, the

much disputed Right of Search. There is no Right of War with regard

to which nations are more sensitive,--and no nation has been more

sensitive than our own, while none has suffered more from its exercise.

By virtue of this right, every licensed sea-rover is entitled on the

ocean to stop and overhaul all merchant vessels under whatever flag.

If he cannot capture, he can at least annoy. If he cannot make prize,

he can at least make trouble, and leave behind a sting. I know not

what course the great neutral powers may adopt, nor do I see how

they can undertake to set aside this ancient right, even if they

smart under its exercise. But when I consider that these powers have

already by solemn convention--I refer, of course, to the Congress

of Paris in 1856--renounced the whole system of privateers among

themselves, I confess my fears that they will not witness with perfect

calmness the annoyance to which their commerce will be exposed. And

now, Sir, mark my prediction. Every exercise upon neutral commerce

of this terrible Right of Search will be the fruitful occasion of

misunderstanding, bickering, and controversy, at a moment when, if my

voice could prevail, there should be nothing to interfere with that

accord, harmony, and sympathy which are due from civilized states to

our Republic in its great battle with Barbarism. Even if we are not

encouraged to expect these things from Europe, I hope that nothing will

be done by us to put impediments in their way. Justly sensitive with

regard to our own rights, let us respect the sensibility of others.

It is not enough to say that we have an unquestioned right to issue

letters of marque. Rights, when exercised out of season or imprudently,

may be changed into wrongs. It was a maxim of ancient jurisprudence,

_Sic utere tua, ut alienum non lædas_, and I think that this maxim, at

least in spirit, is applicable to the present occasion. Our right may

be clear; but, if its exercise would injure or annoy others, especially

without corresponding advantage to ourselves, we shall do well, if we

forbear to exercise it.

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.

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