[MVB] to [James Kent], [4 December 1814]
for the argus.
AMICUS-JURIS CONSULTUS—No. II.
TO AMICUS CURIÆ.
THE pledge with which I concluded my first number is before the public, and I proceed to its redemption. In the discharge of this duty I disclaim all personal feelings. The vindication of the constituted authorities of the state, being my only object, I can have no interests distinct from those of truth and justice.—Reposing myself on principles and authorities which are irrefutable, I cheerfully leave to Amicus Curiæ, all the benefits derivable from the art, the cunning, and the sophistry, which characterise his communications.— In the extenuation of bad actions, these may be powerful auxiliaries, but to the advocates of truth they are useless.
The remaining point which I have promised to investigate is the correctness of the chancellor's position, that the practice of privateering is "merely tolerated." The idea which his honor intended to convey by the terms "merely tolerated," must be obvious to all, and can require no further elucidation, than that which has been given. Without, therefore, detaining you or the public, by a lengthy disputation about words, or references to lexicographers, I proceed to show the manner in which privateering has been regarded "by the most powerful and enlightened nations of the earth"
My positions are—
I. That instead of being "merely tolerated," it has been recognized as one of the established rights of war for ages.
II. That is has not only been so recognized, but has moreover, at different periods, received particular encouragement from governments who have for centuries past, in a very great degree, given laws to the world.
My first position will be found incontestably established by a reference to the following official documents:
1st. By the 33d article of the treaty of Breda concluded between Great Britain and the States General of the United Netherlands, in 1667, it is provided, "that they who obtain private commissions from either party, before they receive such commissions shall give good and sufficient security, that they shall do no damage or injury to the subjects or inhabitants of either side."
2nd. By the 12th and 13th articles of the treaty of Hague, between the same parties, very particular regulations are adopted for the government of "those of his majesty's subjects who send out private men of war."
3d. By the treaty of London, between the same same parties, in 1674 similar provisions are made: and in the treaty of Whitehall, between the same powers, in 1689, additional provisions are adopted in relation to "privateers duly authorized by the contracting powers."
4th. By the treaty of St. Germain between France and England, in 1676, provisions similar to those of the treaty of London are made.
5th. By the treaty between the same powers in 1686, further regulations are adopted, for the government of the conduct as well of the subjectsof the two powers, who shall fit out privateers, as likewise of their priviledged companies.
6th. By the treaty of Utrecht, between the same powers, in 1713, the principal provisions of the last treaty on the subject of privateering are renewed.
Nor has the recognition of the right of privateering been confined to the power of Europe.—The principal regulations contained in these treatie have been adopted by the United States, in their treaties with the States General of the United Netherlands, in 1782—with Great Britain in 1794,—with Spain, in 1795, and with France, in 1800.
In all the treaties I have thus enumerated, the practice of privateering is treated as one of the conceded rights in war. In no instance do we find on the part of any of the powerful nations who were parties to them, or the enlightened statesmen who represented them, a single protest against its legality—a single conscientious scruple as to its justice or morality.
But I withhold all comments. They furnish you with a pretence to abandon the merits of the dispute, and to seek for public sympathy, on the assumed ground of indecorum towards your patron. Of this pretence I wish to deprive you.
I have said that the grounds assumed by the chancellor were utterly untenable. This was not said lightly, but on full examination and reflection. I must therefore beg the farther indulgence of the public, whilst by showing the conduct and views of other powers on the subject, I justify the complaints of Juris Consultus in relation to that "fastidious morality" which inveighs against conferring extraordinary benefits "on those concerned in privateering, at a time when the enemy has in a great degree annihilated our commerce, by enforcing the practice with all its rigor against us—at a time too when that enemy is keenly suffering by the "retortion" which he has rendered indispensable.
As early as the year 1629, Sir Kenelm Digby, having obtained a commission against the French, and being in the Streights, was every where honored as a cavalier whom the king of Great Britain favored. In his voyage he took some prizes, and coming to Algiers redeemed some captives, whom he took on board and placed in the several vessels he had made prize of; the which he so effected that in a short time he became Illustrissimo of six ships of war."—
Molloy, ch. 3. page 45. Thus you see, sir, that at that early period, governmental rewards and honors, were not withheld from the hardy and enterprizing privateersman; nor was the rising greatness of this brave cavalier, checked in its progress by a species of morality, which if it is not exclusively of American growth, certainly did not exist at that time.
"Casaregis, (says Azuni) in a very elegant discourse delivered by him on the 14th of October, 1733, before the Grand Duke of Tuscany, thus addresses him—'There is a doubt that this is your case, for the reason that the commander of a ship of war, or public cruizer, furnished with a commission, and carrying the flag of your Royal Highness, cannot and ought not to be considered as an Individual, but as representing the person of his prince as an officer of war, who, in regard to the equipment and economy of his vessel, has the same power and jurisdiction, as the general of an army.' Such is the declaration of the king of France on this subject, of the 24th of June, 1778, in which he makes known his intention to reward by marks of honor and distinction such privateers and cruizers, as should signalize themselves by any signal enterprizes against the enemies of the state." 2nd Azuni, 353-4.
In your next, however, (if you should be indiscreet enough to venture further,) you may say, that it was "legislative encouragement" only, the propriety of which his honor controverts. I confess, that I could not have thought of this distinction, had it not been for the hair-breadth discriminations with which your last reply to Juris Consultus abounds. Permit me, therefore, as well out of regard for your own respectability, as respect for the subject, to prevent all quibbling in respect to it, by furnishing you with precedents, the propriety of which you ought not to dispute, for they come from the "bulwark of our religion." They are surely English.
I even hope, sir, that they may in a very great degree assuage the asperity of your friend "Las Casas." That should they fall under his observation, they may in some measure tempt him to cease the profanation of the sacred desk, by his unmerited calumnies on the President, for the destruction of the Creeks, whose magnanimous and christian conduct in the massacre of men, women and children at Fort Mimms, was so well calculated to excite christian sympathies.
Excuse this digression.—It is a subject which has forced itself upon me, on which I had not intended to touch, at least at this time. But if the received opinion is correct, as to the author of Las Casas, I confess I know no subject more eminently entitled to public animadversion, public censure, and public indignation.—But to the point.
In the preamble to an act of the British parliament, passed in the 4th year of the reign of William & Mary a. d. 1693, entitled "an act for continuing the acts for prohibiting all trade and commerce with France, and for the encouragement of privateering," you will find these words—"Whereas it would tend much to the annoying and damaging their majesties' enemies, and to the better securing the trade and commerce of this kingdom, if greater numbers of ships were equipt and set out in warlike manner by their majesties' subjects: to which end it is requisite that all fitting encouragement should be given to all merchants, owners and setters out of, and all the officers commanding and serving in any private man of war, for the seizing, surprising and taking of ships and vessels of their majesties' enemies," &c.
This, sir, I think looks a little like giving "legislative encouragement." But this is not all.
In the preamble to another act of the British parliament, passed in the 17th year of the reign of George II a. d. 1744, you will find these words—"Whereas his majesty being engaged in a just and necessary war against France, and being resolved to prosecute the same with the utmost vigor, has, for the encouragement of his faithful subjects, serving on board his ships of war, or privateers, been graciously pleased," &c. (reciting the encouragement given by the act of 13th George II. and the privileges given to privateers, commissioned against the Spaniards, and then proceeding)—"And whereas it is necessary that the same encouragement in all respects should be given to the captors of French ships, &c. now, to the end that his majesty's most gracious intentions may have full force and effect, and for the better carrying on the war against France with vigor, and for the encouragement of the officers, &c. of his majesty's vessels or ships having commissions or letters of marque, &c. and for the more effectual securing and extending the trade of his majesty's subjects," &c. The statute then goes on to give various benefits to those concerned in privateering, confirming such as was granted by the 13th George II. among which is a penalty of 500£ on any "Judges or other officers in his majesty's dominions abroad," neglecting to perform any of the matters to them referred, relating to discharging or condemning captures.
And lastly sir, on referring to the 16th section of this act, you will find that when his honor said that "charters of incorporation had hitherto been reserved for municipal, commercial, literary, charitable and religious purposes," he was as much mistaken as he has been throughout. That our act was not the first attempt of the kind—that even in England, a clause which I copy for your instruction and gratification, was passed by the votes of her Bishops, her Peers, and her Commons, and approved by the very "Defender of the Faith" himself.
The clause is in these words—"And for the encouraging his majesty's subjects to engage in joint and united, as well as separate expenses, expeditions and adventures, Be it further enacted by the authority aforesaid, that his majesty be, and he and his heirs and successors are hereby empowered from time to time during the continuance of this or any future war, to grant and make any charter, commission or grant, for the better and more effectual enabling any society, or societies, or particular persons, to join in any expedition by sea or land, and to sail to or in any seas, for the attacking, surprising, taking or destroying any ships, goods, moveables or immoveables, settlements, factories, forts, castles and fortifications, &c. now belonging or hereafter to belong to any enemy of his majesty, his heirs or successors; and for the better making and carrying on any preparations for such purposes, and for the giving and securing to the societies and persons which may be concerned, their heirs, successors, executors, &c. full and undoubted properties, rights and titles of, in and to, and the full enjoyment of all and every the ships, ammunition, stores of war, goods, chattels, moveables or immoveables, settlements, factories, forts, &c. which such society or persons shall take or cause to be taken from any such enemy; together with all the proceeds, profits or advantages which may accrue of or by the same or any of them, with and under such regulations as his majesty, his heirs and successors shall think fit; and at any time afterwards, by any further grants or charters, to confirm, corroborate and further assure the premises, or every or any of them, to the said societies or persons concerned, their and every of their heirs, successors, executors, &c. so as to enable them and every of them, to have, hold and enjoy the full benefit thereof, according to the true intent and meaning of this act."
I feel, sir, that I ought not to press this subject farther. Perhaps it would have been well, considering the high interest which the public have in the confidence which should be reposed in their highest judicial officer, had his errors been suffered to remain less palpable. You now see what you ought to have known before you provoked this discussion, that when the chancellor threw himself with his official weight and character, between us and the enemies of our land, by his objections to every prominent bill which the legislature passed for our defence, he did so, on grounds the most untenable.
When a man acting on the side of his country, in the ardor of his devotion, advocates principles which are found to be erroneous, we feel no difficulty to find his apology, without impeachment of his patriotism. But, sir, when erroneous doctrines are laid down, which tend to the benefit of a cruel, bloody and savage foe—when they are not only acted on without the fullest examination, but attempted to be supported by the utmost exertions, it fills our minds with the most unpleasant sensations. I repress them. Whatever you may think, I feel no personal prejudices against the chancellor. Motives far different from those, and as I hope of the purest nature, have induced this investigation.
There are times, when the conduct of public men is so intimately connected with the general welfare, that not to direct the public attention to them is criminal. The present is that time. The standard of rebellion is unfurling in the east.— Sentiments which a short time since dared scarcely to be breathed in whispers, are now proclaimed from the house-tops. Opposition to the laws of the union, is inculcated as a duty, and its separation treated as a matter of business and calculation. Every effort is making to [spr]ead the contagion among us. All prospects of a speedy peace have vanished. The next campaign may decide our fate and the fate of millions yet unborn. A large majority of the people of this state, conceive much of its safety to depend on the execution of the several laws to which the chancellor has objected. Many, unfortunately too many, of our citizens, are so inured to opposition, that but little of reflection is indulged in.
The chancellor has arrayed three of these laws at the bar of public opinion, as unconstitutional. His opinions are hawked about the country, by the fire-brands of faction. The rights and duties of the people, in relation to laws which are deemed to be so, are of a nature which the times may render too delicate for discussion.
If he is right, the laws in question may remain a dead letter, our cities may be sacked and our country ravaged by the foe, but he may stand "conscious and erect." But if he is wrong, which he most assuredly is, may not thousands of ignorant and deluded men draw down upon themselves and their families, distress interminable? They may.
It is, therefore, a sacred duty to investigate calmly, and as far forth as possible, dispassionately, the whole conduct of his honor, in relation to the various bills he has objected to. A portion of this duty i have assumed and attempted to discharge.—A far greater portion has been assumed and faithfully discharged by a far abler hand.— If any thing is yet wanted, it shall not be withheld.