MVB to James Kent, c29 November 1814

[MVB] to [James Kent], [c29 November 1814]

To amicus Curiae

Your defence of the chancellor furnishes better proof of your attachment to him Friendship than your discretion. Before you undertook the Herculean task of supporting the extravagant grounds which his honor has seen thought proper to assume, common prudence should have dictated a more critical & extensive "view of the whole ground". The omission to do so has involved your patron as well as yourself in a dilemma from you cannot extricate yourselves without the most <acute> pain.

The principles contended for by the Chancellor are untenable—utterly so. It is beyond your power to render them even plausible, & ^in^ the sequel you wi[ll be com]pelled to abandon the controversy with disgrace. That Juris Consultus may not be diverted from his usefull labours, 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 your the essay of amicus Curiae.

But Sir before I enter on the discussion of the merits of the objections & 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 personal reflections ^Indecency & personality^ of Juris consultus & in doing so 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 none. I aver that his communication ^the discussion on his part^ is conducted with a degree of moderation & respect, which could not reasonably have been expected from ^one^ acquainted with the violent & high handed ^whole^ conduct of his honor in relation to the Bills in question during the last session of the Councill.

But sir as the advocate for decency & the champion of morality it was ^at^ least to have ben expected that you yourself would [have] been decent, that christian forbearance & charity would have characterised your communication. Is it so? It is not. your charge In the very outsett of you ab rudely & abruptly charge Juris Consultus with Cowardice. You ^must^ know sir, that there is no term of obloquy or reproach, more offensive, none which a decent man can use better more better calculated to excite deep irritation than the one which you, an avowed advocate for decency & morality, have seen fit to adopt. I know Juris Consultus an & I know that there is no one infirmity to which he is less subject than the one he 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 failed ^particularly^ to state particularly, the only ^fair^ inference from your remarks however is, that as the Chancellor is a ^high^ Judicial officer, it is not competent for him to take notice that notice of "personal reflections" which the opinion public opinion allows to other men & that therefore it is again evidence of cowardice to apply them to him.

Let Suffer me for a moment to sub[j]ect the conduct of your patron to the [. . .] which you have established and for ^the consequences of^ which art not I, but you are responsible. You will certainly ^surely will not^ claim for him this protection otherwise than as a Shield & certainly not as a weapon. You doubtless will admit that exemption from insult does not carry with it a privilige to insult others. On the contrary it should not be disputed that the very exemption you claim, comes with it ^imposes^ an imperious duty to abstain from giving insult ^offence^ to others. Now Sir I aver & rest assured that my Statement will not be contradicted. That on ^in^ the discussions on one of the Bills in question in the councill, ^The Chancellor^ not only felt himself at liberty to insult Chief Justice Thompson, ^a man^ who by the obvious purity of his heart, the force of his talents & the conspicuous & exhalted integrity & impartiality of his official conduct has endeared himself to <unite> the people of this state. By speaking ^saying^ of in his absence that "Thompson had the audacity to pretend &c. ^But^ That his intemperance did not stop here, but that in speaking of one of the Bills which were sent to them he said & said not lightly, not in that levity which is sometimes the of playfullness of a great mind & sometimes the affectation of a little one, but [gr]avely and sedately ^said^ "That the [. . .] of the legislature deserved to [hav]e 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 an irresponsible 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, but not to you <since> for you ^to^ <permit> be rendered indispensible, <illegible> for this digression from the important subject before them, I proceed to its discussion.

The main grounds first & principal ground of objection taken by the Chancellor is "Because privateering is merely tolerated & not approved of, either by the maxims of public law or the opinion of enlightened Jurists." The law in question was that which had tending to afford it facilities was therefore improper. The Correctness of this position is disputed by Juris Consultus & attempted to be supported by you. It is necessary to a correct understanding of the subject tha[t the] terms of ^used by^ the Chancellor and their meaning as intended by him should be truly defined. On this subject you evince a degree of fluttering & confusion not precisely characteristic of an "enlightened Jurist." The expressions however are in no sense equivocal. When therefore the Chancellor says that the practice of practice of privateering is merely merely tolerated, he can only be understood as meaning, as one that it is one of those ^acts^ usually attendant on a state of war, which are not to be governments do not prevent but which are not ^deem completely^ Justifyable on the ground of national law, which though suffered are never ^ought not to be^ officially avowed & ought not therefore to be encouraged by legislation an & to which in his own language it is deemed improper, ^to afford^ "by "a direct legislative encouragement by conferring on those concerned in it extraordinary benifits". When he sayid 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 supportable by the established maxims of that law. I say he must have so intended because knowing him to be a sound [. . .] it would be doing him in Jus[tice to] suppose that in using legal terms he did not intend to use them in their legal acceptation & that therefore when he speaks of the "maxims" of the law, he speaks of them uses them for what the term imports, viz "general customs which by the assent of all have become maxims & in itself ^are in themselves^ a sufficient authority." ^Knowing^ That what it ^a maxim of Law^ allows it always approves, be ^and^ as knowing ^<xx>^ that it would be libel in that law to say that it allows what it does not approve & that the force of bringing in <pleasure> of such maxims is ^in^ no degree affected by the appointment & disapprobation of indivudal Jurists. What was intended by "The opinions of enlightened Jurists" needs no ^proper^ explanation than the Term <implies> are terms in themselves sufficiently explicit.

With this done these explanatory remarks Sir, let us test the Chancellors positions by authority & permit me for conveyance to reverse their orders in <illegible>

Ist. Then is it true that the position p[rivateer]ing is "not ^only not^ approved ^either^ by the maxims of public or the opinions of enlightened Jurists." Let the evidence of ages decide.

Take in A.

<Gratious> you perceive S

Take in B.

— C.

Lord Chief Justice Hale, who as a moralist, a Christian & Jurist stands unrivalled in the history of Jurisprudence & whose memory will ^continue to^ be revered by the remotest ages in &c. says

Take in D. = he felt no difficulty as ^to^ the "maxims of public law." On the subject, he, expressed, the very portion of morality expresses no conscientious scruples as to its Justice.

Molloy, one of the strongest advocates for ^the^ British dominion of the Seas extant & whose essays in have in no inconsiderable degree contributed to the insolent pretension

"That the winds

"The winds & waves are Britains wide domain

And not a sale but by permission spreads"

in his – (late in E.)

Take in E

Taken in G.

Take in H

You Sir have referred to professor Wooddeson in his vinerian Lectures &c as authority & have seen fit to extract what he says as to the disorders to which it ^the practice^ is subject, permit me to trouble you with what pr immediately precedes to your extract. "Lord Clarendon, (says he) inveighs against the contrivance shewn in his time to privateers partly on account of the Inhumanity of their crews & partly because they escape occasioned ^desertion^ from the Kings service. These were temporary a[. . .] The general Justice of the custom [. . .] [with]out 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 & 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 accomodation seems implied in the very nature of Law ^War^ perhaps the fitting out & commissioning of privateers cannot be so easily defended on principles of magnanimity & moderation Reason therefore (not the maxims of public law) rather to <illegible> &c as stated by yours

You have cited Professor Martens to establish the authority of your favorite Emerigon [. . .] must therefore ^consequently^ have read [his "S]ummary of the Law of Nations" Why ^then^ did you not therefore omit to furnish the ^your^ reader with his op own opinion on the subject of privateering. Let the opinion itself answer the question. In

(Take in I.

In the objections of his honor he refers pleaces much reliance is placed on an ^article in a^ supposed treaty

And while on this subject, you might have added that the 23d article of to our treaty with prussia, on which so <illegible> <a> introduce has been introduced with so much parade & to the Inferences from which Juris consultus has done such ample Justice, is declared by Professor Marten to be "the first example of a convention embracing such pro a provision."

Take in J

Take in K

Lastly sir your maledictions [. . .] contrary I must venture to [. . .] your attention Azuni the same ^Azuni^ to whom you refer when you take the liberty of saying that again he was again and <illegible> nothing ^<sold> not yet degenerated^ the same Azuni who until he fell under your displeasure was universally admitted to be an "enlightened Jurist" but alas, he <never> ^came^ from Italy to France, you a & still more unfortunate (according to you) he became an admirer of Bonaparte. Enough, enough. his Bo The last edition of his Book was published at Paris & the profound and erudite, the profound & the enlightened Azuni ceased to be authority. How unkind how preposterous how illiberal ^how preposterous^ is this course. Are we never to be exempt from it? Must our ears for ever be ^stunned & our understandings forever^ insulted, by such childish bugbears.

I hoped Sir, that [. . .] at least for the future, we [might] hear no more of French, France & Bonaparte as terms of Terror & alarm. Now Sir, when ^according to your immaculate Morris^ "the ^long^ agony is over" when the house of Bourbon is restored to its long lost rights how ^when^ by the Glorious emancipation of Europe ^the Bourbons are restored, & France reposes in the arms of her legitimate prince" <the> <illegible> Bourbon has been restored to our ^their^ great right^ when we see "Though it should burn ^blast^ our Eye Balls," "Royal Soveriegns ^Lawful Princes^ surrounded by lo^Ro^yal Subjects". That now at last Sir it would seem that ^we^ should cease to Stagnation ^Slabber out invectives" whatever is french.

But Sir let me not detain you from Azuni, a portion of his remarks may perhaps explain "the head & front of his offending"

(Take in Azuni 1st Section)

I forbear Sir. If every <subject> man ws must ^now^ be satisfyed what are the "maxims of public law" & what the opinion of most "enlightened Jurists" on the subject of privateering. I admit Sir that some few of the authors I have cited as ^mere^ philosophers & men regret while they admit the legality of the practice. This ^as^ well as many other practices incident to a State of war [. . .] with their feelings we have [nothing] to do.

The unexpected lenght of this communication imposes on me the necessity of troubling you with a second number in which I pledge myself to shew that so far from the privateering being "merely tolerated, it has been approved, Justifyed & encouraged by rewards & honors by the most powerfull & enlightened nations of the earth"

Amicus Juris Consultus.

*Document Marginalia:

[Written in the left-hand margin] xx that although Judges may sometimes think their application to any particular case grievous rigorous & therefore disapprove of the ^conduct of the^ party who seeks to enforce them that does not in the least alter or impair it is not but that as to ^it is not so with^ the ^binding^ maxims of public Law ^that^ they never allow what they do not Justify & prove approve.

Editorial Process Complete