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.