“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.