[MVB] to [James Kent], [29 November 1814]
for the albany argus.
TO AMICUS CURIÆ.
Your defence of the chancellor furnishes better proof of your friendship than of your discretion. Before you undertook the Herculean task, of supporting the extravagant grounds which his honor has thought proper to assume, common sense should have dictated a more critical and extensive "view of the whole ground." The omission to do so, has involved your patron, as well as yourself, in a dilemma from which you cannot extricate yourselves, without pain.
The principles contended for by the chancellor are untenable—utterly so. It is beyond your power to render them even plausible; and, in the sequel, you will be compelled to abandon the controversy with disgrace. That Juris Consultus may not be diverted from his useful labors; that the other objections of his Honor may not escape the animadversions they merit, from his pen, I have taken upon myself the refutation of the essay of Amicus Curiæ.
But, sir before I enter upon the discussion of the merits of the objections, and your defence of them, indulge me in a few reflections on the manner in which you have thought proper to conduct it. You complain of the indecency and personality of Juris Consultus, and in so doing, you content yourself with a general allegation, without designating the remarks which you deem offensive. In terms equally general, and of which you have no right to complain, I deny the justice of the imputation. Nay more, I aver, that the discussion on his part is conducted with a degree of moderation and respect, which could not reasonably have been expected from one acquainted with the whole conduct of his honor, during the last session of the council.
But, sir, as the advocate for decency, and the champion of morality, it was at least to have been expected, that you yourself would have been decent; that Christian forbearance and charity would have characterised your communication. Is it so? It is not. In the very outset, you rudely charge Juris Consultus with cowardice. You must know that there is no term of obloquy or reproach more offensive, none which a decent man can use, better calculated to excite deep irritation, than the one which you, an avowed advocate of decency and morality, have seen fit to adopt. I know Juris Consultus, and I know that there is no one inormity to which he is less subject than the one you impute to him. Nor is this knowledge necessarily confined to me only. In what way you consider this foul charge supported, you have not condescended particularly to state. The fair inference, however, is, that as the Chancellor is a high judicial officer, it is not competent for him to take that notice of "personal reflections" which public opinion allows to other men; and that, therefore, it is evidence of cowardice to apply them to him.
Suffer me for a moment to subject the conduct of your patron to the ordeal which you have established, and for the consequence of which act, not I, but you, are responsible. You surely will not claim for him this protection otherwise than as a shield, and certainly not as a weapon. You doubtless will admit that exemption from insult does not carry with it a privilege to insult others. On the contrary, it should not be disputed that the very exemption you claim imposes an imperious duty to abstain from giving offence to others.—Now, sir, I aver, and rest assured that my statement will not be contradicted, that in the discussion on one of the bills in question in the Council, the Chancellor felt himself at liberty to insult Chief Justice Thompson, a man who by the obvious purity of his heart, the force of his talents, and the conspicuous and exalted integrity and impartiality of his official conduct, has endeared himself to the people of this state—by saying, in his absence, that "Thompson had the audacity to pretend," &c.; that his intemperance did not stop here; but that in speaking of one of the bills which were sent to them, he said, and said not lightly, not in that levity which is sometimes the playfulness of a great mind, and sometimes the affectation of a little one; but gravely and sedately said, "That the members of the Legislature deserved to have their throats cut for voting for the law under consideration." Now, sir, the numerous gentlemen thus implicated by his honor have feelings also. They too acted in their official capacities. They too acted under the solemn obligations of an oath. They have been thus severely insulted, from a quarter for which you claim personal irresponsibility. Do you therefore, who are so liberal in epithets, apply that which, according to your maxims, such conduct merits.
With an apology to the public for this digression from the important subject before them, I proceed to its discussion.
The first and principal ground of objection taken by the Chancellor is "Because privateering is merely tolerated, and not approved of, either by the maxims of public law, or the opinion of enlightened jurists," the law in question, which tended to afford it facilities, was therefore improper. The correctness of this position is disputed by Juris Consultus, and attempted to be supported by you. It is necessary to a correct understanding of the subject, that the terms used by the Chancellor, and their meaning as intended by him, should be truly defined. In this respect, you evince a degree of fluttering and confusion, not precisely characteristic of an "enlightened jurist." The expressions, however, are in no way equivocal.—When, therefore, the Chancellor says that the practice of privateering is merely tolerated, he can only be understood as meaning that it is one of those acts usually attendant on a state of war, which governments do not prevent; but which are deemed completely justifiable on the ground of national law, which though suffered, ought not to be officially avowed; and to which in his own language, it is deemed improper to afford a "direct legislative encouragement by conferring on those concerned in it, extraordinary benefits."
When he said that the practice was "not approved of by the maxims of public law," he certainly must have intended that the lawfulness of it was not supported by the established maxims of that law. I say he must have so intended, because, knowing him to be a sound lawyer, it would be doing him injustice to suppose that in using legal terms he did not intend to use them in their legal acceptation; and that, therefore, when he speaks of the "maxims" of the law, he uses them for what the term imports, viz. "general customs, which by the assent of all, have become maxims, and are in themselves, a sufficient authority." Knowing that although Judges may sometimes think their application to any particular case, rigorous, and, therefore, disapprove of the conduct of the party who seeks to enforce them, that it is not so with the binding maxims of public law, as they never allow what they do not justify and approve.
"The opinion of enlightened jurists" are terms in themselves sufficiently explicit. With these explanatory remarks, sir, let us test the Chancellor's positions by authority, and permit me, for convenience, to reverse their order.
First, then.—Is it true that privateering is "not approved either by maxims of public law, or the opinions of enlightened jurists?" Let the evidence of ages decide.
Grotius, de jure belli et pacis, Book III. Chap. 18. sec. 2. a. d. 1625, speaking of acts which may lawfully be performed in war by individuals, says, "They may have a special order, not only who receive pay, but also they who serve in war at their own expenses, and what is more, they who maintain part of the war at their own charges; as they who fit out ships, and maintain them at their own private costs, who to reimburse themselves (instead of pay) are allowed to keep and appropriate to themselves what they take." In the same section he also says, "therefore the goods of the enemy shall be theirs, who maintain part of the war at their own charge."
Puffendorf, in his "System of Morality, Jurisprudence, and Politics," Book VIII. Chap. 6. (a. d. 1660) says, "Every public war seems to have something in it like such a sort of compact as this: Try your strength, and I will try mine."— And in chapter 9, "But because war lies heavy upon the subjects, whether they are only taxed to support it, or are obliged to serve in it themselves, it is no more than a good Prince, who hath a love for his subjects, would yield to, that the subjects should be allowed, in return, to make some advantages to themselves by the war; which may be done either by assigning to them a certain pay from the public, when they go upon an expedition, or by sharing the booty among them." And the only exception he makes to the practice is, that "no private person hath power to make devasations upon the enemy, or to carry off spoil or plunder, without permission from his sovereign, and without being commissioned by the public authority."
Barbeyrac, in his commentaries upon Grotius, admits the principle, in its fullest extent, with the same distinction made by Puffendorf, "That nothing should be done without the particular or general permission of the sovereign." Barbeyrac's Notes to Grotius. Book III. Chap. 18. section 2.
Lord Chief Justice Hale, who as a moralist, a Christian and a jurist, stands unrivalled in the history of jurisprudence, whose memory will continue to be revered by the remotest ages, says in his Treatise on Maritime Law, Part 3d. Chap. 18. (a. d. 1660) "The subjects of either side may not take the goods of others without commission, which is usually granted by the Lord Admiral. If he doth assail the foreigner's ships otherwise than in his own defence without such commission, it is a depredation; for it is not a time of absolute hostility, in respect especially of the king's subjects, but qualified, viz. that commissions shall issue of reprisal to them that desire it; and this qualification is commonly in the proclamation that issues upon such occasions; although in truth there is another end in such commission, viz. that the parties employed in such acts of hostility as privateers may be known, and may secure the shares belonging to the king or admiral of goods taken, and may be responsible for any miscarriage at sea under pretence of hostility." He felt no difficulty as to the "maxims of public law" on the subject—he, the paragon of morality, "who would not have done an unjust act for any worldly price or motive,"* expresses no conscientious scruples as to its justice.
Molloy, one of the strongest advocates extant for the British dominion of the seas, and whose essays have, in no inconsiderable degree, contributed to the insolent pretension that
"The winds and waves are Britain's wide domain,
And not a sail but by permission spreads,"
in his De jure maratimo et navali Chap. 3. (about a. d. 1670) says, "Since, therefore, it is not against the law of nature to spoil him whom it is lawful to kill, no wonder that the law of nations permitted the goods and ships of the enemy to be spoiled, when it suffered their persons to be slain. The approbation of which in the wars of later ages, hath given occasion to princes to issue forth commissions to endamage the enemy in their commerce, and to prevent such supplies as might strengthen or lengthen out the war, to persons to whom the prize on caption becomes absolutely the captors, and that to prevent the spare of ships of force to be absent from their respective squadrons or fleets.
The same principle is also recognized by Burlamaque, in his Politick Law, and Rutherford, in his Law of Nature.
Beawes in his Lex Mereatoria, a work of celebrated and established reputation page 220, (1750) justifies the practice of privateering, in these words: "Whoever reflects, that every individual is injured when the nation in general is so, and that if this has a right to vindicate or avenge its wrongs, particulars must be justified in affording their assistance, we must conclude that in so doing, they only comply as good subjects, whilst their proceedings remain directed by authority, and their successes against the enemy are managed with that humanity our own natures and the laws of humanity enjoin." Postlethwaite, in his dictionary of commerce, which is principally a translation from the French of the celebrated Savary, says, vol. 1, page 549. says "That privateers in general are lawful, when under right conduct, there is no room to question; for if a war be entered into on a just foundation, they cannot be unjust: all ways of bringing an enemy to reason, which are not against the law of nations, are allowed; and it is no matter whether a person so commissioned is paid by the prince, or content to pay himself out of the spoils of the enemy, or acts for no pay at all, but of love to his country and love to his prince."
You, sir, have referred to professor Wooddeson, in his "Vnerian Lectures," as authority, and have seen fit to extract what he says as to the disorders to which the practice is subject—Permit me to trouble you, sir, with what immediately precedes your extract: "Lord Clarendon (says he) inveighs against the countenance shewn in his time to privateers, partly on account of the inhumanity of their crews, and partly because they occasioned desertion from the king's service. These were temporary abuses. The general justice of the custom passes without any censure from that moral historian. Indeed, it may well be supported as consonant to the received law of nations. All the subjects of hostile states, as before observed, are reciprocally enemies; they all owe obedience to their respective sovereigns, and have a merit in serving them, at least unless the cause is evidently unjust; the goods of the inimical nation are forfeited to the belligerent power into whose hands they fall; and lastly to distress the enemy as much as possible while he rejects equitable terms of accommodation, seems implied in the very nature of war. Perhaps the fitting out and commissioning of privateers cannot be so easily defended on principles of magnanimity and moderation."
You have cited Professor Martens to establish the authority of your favorite Emerigon. You must consequently have read his "Summary of the Law of Nations." Why then did you omit to furnish your reader with his own opinion on the subject of privateering? Let the opinion itself answer the question. In Book VIII. Chap. 3. sec. 2. (a. d. 1783) he says, that "Such subjects as obtain express commission for the purpose, from the sovereign, may lawfully exercise hostilities;"—"for this reason, those who wish to arm privateers, are obliged to obtain letters of marque; furnished with them, they become lawful enemies." And in section 10, "In maritime war, the private property of the enemy's subject is never spared. In order to encourage privateering, those concerned in it are allowed to hold all the merchant vessels and merchandize, they take from the enemy or his subject without any reserve whatever with respect to the redemption of them by the proprietor." And while on this subject, you might have added, that the 23d article of our treaty with Prussia, which has been introduced with so much parade and to the inferences from which Juris Consultus has done such ample justice, is declared by Professor Martens to be "the first example of a convention embracing such a provision."
Hume on Crimes, Vol. II. page 359, admits the lawfulness of the practice, with the general distinction made by every writer on the subject, "that it must be carried on under warrant of proper licences or commissions to arm." Professor Brown, (of the University of Dublin) in his "Court of Admiralty Laws," under the head of "Privateers," Vol. II. page 338, traces the origins of the practice to the legal institutions of Rome, states the arguments for and against their use, and decides in his favor.
Lastly, sir, your maledictions to the contrary notwithstanding, I must venture to call your attention to Azuni; the same Azuni to whom you refer, when you take the liberty of saying that he had not yet degenerated; the same Azuni, who, untill he fell under your displeasure, was universally admitted to be an "enlightened jurist." But, alas! He came from Italy to France, and still more unfortunate, he became (according to you) an admirer of Bonaparte. Enough! Enough! the ast edition of his book was published in Paris, and the erudite, the profound, and the "enlightened" Azuni, ceased to be authority. How unkind, how illiberal, how preposterous is this course. Are we never to be exempt from it? Must our ears for ever be stunned, and our understandings for ever be insulted, by such childish bugbears?
I hoped, sir, that for the future, we should hear no more of French, France and Bonaparte, as terms of terror and alarm—now when, according to your immaculate Morris, "the long agony is over!" when by "the glorious emancipation of Europe," "the Bourbons are restored, and France reposes in the arms of her legitimate prince;" when we see, "though it should blast our eye-balls, lawful princes surrounded by royal subjects;" that now, at least, we should cease "to slabber out invectives" against whatever is French.
But let me not detain you from Azuni. A portion of his remarks may explain "the head and front of his offending." "Some pretended philosophers (says he) have indulged in much declamation against privateers and privateering, and have reprobated this mode of carrying on war. It is not in this manner, they observe, that a state ought to be served; for the profit gained by individuals is illicit and dishonourable. This language, delivered under the specious appearance of wisdom and great delicacy of conscience, is mostly for the sake of diverting the attention from the truth, and the better to conceal the secret motive of their indifference to the welfare and advantage of the country they hate. As much, then, as these declaimers are censurable, so much are they worthy of praise, who generously expose their lives and fortunes to the dangers of privateering 'As they are is a better situation in some respects,' says Valia on this subject, 'to annoy the enemy than the government with its apparatus of formidable fleets, they render an additional service to their country, by relieving it from the burden of arming, at is own expense, a great number of vessels which, without their aid, it would be obliged to fit out as cruizers."—Azuni, Part 2d. Art. 3d. Sec. 1st.
I forbear, sir. Every man must now be satisfied as to what are the "maxims of public law," and what the opinion of most "enlightened jurists," on the subject of privateering. I admit, that some few of the authors I have cited, as mere philosophers, regret, while they admit the legality of this as well as many other practices incident to a state of war; but with their feelings we have nothing to do.
The unexpected length of this communication imposes on me the necessity of troubling you with a second number, in which I pledge myself to show that so far from privateering being "merely tolerated," it has been approved, justified and encouraged, by rewards and honors, by the most powerful and enlightened nations of the earth.