[Samuel Young] to James Kent, [c23 December 1814]
To the Hon. James Kent, Esq. Chancellor of the State of New-York.
Believing that your attention, for the time being, must have been sufficiently occupied with the numbers of Amicus Juris Consultus, and unwilling to distract it with a multiplicity of objects, I have delayed for some time to address you. I have waited till the subject of privateering is nearly exhausted.
A repetition of my former observations on this subject, would be useless, and shall be avoided; and an attempt to add to the weight of authorities which have been arrayed against you, by Amicus Juris Consultus, would be like "burning tapers at noon-day to assist the sun in enlightening the world." You will, therefore, I trust, forgive me, if my present address is more unconnected and desultory than a strict observance of major, minor and conclusion would authorise.
The stile, the manner, the magisterial tone,—indeed, the tout ensemble, of "Amicus Curiæ," indicate the author with moral certainty; but I wave the enquiry, and will not hazard the presumptuous conjecture, that you would condescend to become a newspaper scribbler.
Passing over the charge of "cowardice," &c. as the sure concomitant of a "purer taste and more manly character;" and conceding to your "Amicus" all the superiority which the exclusive appropriation of such epithets bestows, I will give due weight and consideration to whatever of argument he has urged against me. With respect to authorities, I need not repeat that I am more than anticipated by the profound researches and ingenuity of the learned Amicus Juris Consultus.
Against the passage of the bill to encourage privateering, you had specifically assigned three objections; to each of which I gave a separate and distinct consideration. Under these circumstances, "Amicus Curiæ" enters the lists, and after exhausting the resources of a brilliant imagination, sounds a retreat, leaving his antagonist in quiet possession of two thirds of the field of controversy. I fear, Sir, that his omission to urge any thing whatever in support of two of your objections, will be imputed to a settled conviction that they are totally indefensible.
Nor does the officiousness of his friendship operate more favorably when he charges me with making "personal reflections." I had said, that should I live to see an individual chancellor of the state, whose whole soul was under the dominion of party spirit,—who was habitually splenetic and fretful,—the slave of whim and caprice; who maintained no dignity of character or consistency of conduct, I would nevertheless treat him with becoming reverence. At this, his sensibility takes the alarm: Setting mood and tense at defiance, he recognizes in the coloring and drapery of the picture the likeness of your honor, and exclaims that I am making "personal reflections on the chancellor!" Bien (says a French author) n'est si dangereux qu'un indiscret ami.
The decree of the constituent assembly of France cited by you, and passed over by me without comment, is gravely urged by "Amicus Curiæ" as an authority in support of your objection. Little as you consider me your friend, I am loath to believe that you would seriously resort to the phrenetic vagaries of a revolutionary assembly for the sober and dispassionate maxims of public law: more especially to that assembly, which had sanctioned the abolition of the Sabbath, and whose hands were yet reeking with the blood of their "legitimate king!" That man, Sir, would be deemed a miserable statequack, who should expect to find the regular and healthful pulsations of a body politic in the fever and delerium of a revolution. But to do you justice at the expence of your friend, you do admit, that "these opinions may have been upon one extreme;" you also seem to admit, that there are "opinions" on the other extreme: in consequence of which, if I rightly comprehend you, the legality of the practice of privateering is suspended at rest, in equilibrie; being exactly balanced by the attraction and repulsion of conflicting authorities, like the iron coffin of Mahomet between two magnets.
But without paying farther attention to minor considerations, permit me to approach and examine the strong hold of your friend. Collecting and concentrating all his forces, he has intrenched himself within the circumference of a formidable interrogatory, from whence he frowns defiance to every assailant. "Was it expedient," (he asks) "for our state legislature to step forth voluntarily on such a subject on which they had no immediate concern, and which properly belongs to another jurisdiction, and bestow upon privateering a facility and patronage which they owe to their own domestic acts and institutions?" This (he adds) was the point before the council.
It gives me pleasure that in one thing we agree, viz. that the bill to which you objected is calculated to increase privateering. There is another point so palpably evident that I shall hazard its adoption without argument:—that Great Britain feels most sensibly every injury to her commerce, and that, to multiply the number of privateers along her coasts and channels, would tend to give employment at home in the protection of her trade; to a part at least of the immense number of public ships which would otherwise be occupied in plundering, burning and laying waste our sea board. Another position is equally evident:—That the greater the injury sustained by her commerce, the more unprofitable will she find the contest, and will be the sooner induced to accede to reasonable terms of accommodation. Was it expedient, then, for our state legislature to pass a law directly calculated to aid in the production of these results? Until I saw your objections, I should strenuously have denied the fact, that a man of your sense and intelligence was to be found in the state, who would have officially and elaborately maintained the negative of this question. Drawing my conclusions from a consideration of the nature of government, and the obligations of man as a social being, I should have deemed it a self-evident proposition,—that when our country is at war, and menaced with pillage, dismemberment and subjugation, it is alike the dictate of patriotism and of duty, for, not only state legislatures, but even individuals, "to step forth voluntarily," and avert, if possible, such fearful calamities: And that instead of its being "a subject in which the legislature had no immediate concern," it is intimately and vitally connected with the best interests of every member of the community.
But, "was it expedient for our state legislature to bestow upon privateering a facility and patronage which they owe to their own domestic acts and institutions?"
Stript of ambiguity, this language is necessarily designed to enforce one of the following positions;— either that by incorporating privateering associations the legislature would exhaust their fund of charters, and be thereby disenabled from paying what they "owe to their own domestic acts and institutions;" or, that charters of incorporation are so far consecrated to domestic purposes, that it would be profane, immoral or improper, to appropriate them to the unholy work of defending our country.
Whatever may be the refined opinions of your friend, you, sir, are too well acquainted with the nature of legislation to believe, that the granting of one charter in the least diminishes the ability to grant others. You know full well that the legislative current of incorporations, like the river of Horace, Labitur and labetur in omne volubilis avum—That it flows along an inexhaustible stream, always filling its channel to the brim. Indeed instead of any indications of dearth, it has occasionally swelled above its regular mounds; and bursting through its barriers with redundant and misguided exuberance, deposited a bank in one place and a bonus in another!
The legislature have already incorporated companies, whose several objects are to make money of the articles of manufacture necessary in domestic life; and also to make roads, to make bridges, to make or rather to convey water, to dig for coal, to make money, &c. &c.—and why not to make war upon the commerce of a ruthless and vindictive enemy?
Have charters of incorporation really become consecrated, by being applied to religious and domestic concerns, so that it would be profanation to appropriate them to the patriotic purpose of protection and defence? Iron and steel have for thousands of years been equally consecrated in the ax, the hammer and the ploughshare; but the most rigid moralist, for that cause, has never forbid the application of iron and steel to the purposes of war. Bread has been consecrated for eighteen centuries in the holy ordinance of the eucharist; nor has any fanatic, during that time, been mad enough to dream that its use should be prohibited in the sustentation of soldiers. In what, then, does the sanctity of a charter consist, that it should not be applied to the sacred purpose of state and national defence? But I forbear: I will not push this ridiculous and puertanical nonsense any farther, lest I might lose my accustomed moderation; indeed, had it not been incorporated with your objections, I should have deemed it a sophism too contemptible to merit any reply.
But "Amicus Curiæ" has made a display of authorities, and attempts to torture even Vattel to give evidence in your favor, by mutilating one of his sections, the whole of which, if it had been transcribed, is directly against you. Such piracies, on the integrity of an author, are really worthy of the cause and the advocate! Two or three other writers, however, to which he has referred, really seem to support your objections. But you will permit me here to remark, that I never said, or ever supposed, that writers might not be found, whose opinions were in coincidence with your objections, or any other objections, however repugnant to the most obvious dictates of reason. There is not an axiom in divinity, law, physic or philosophy, against which your friend might not have arrayed authorities equal in number and respectability. Indeed, sir, three centuries have not closed since the process of ratiocination was deemed necessary to convince the plodding, purblind scholiast of his own worthless existence:—and ego cogito ergo existe, urged with all "the pomp and circumstance" of monkish solemnity, was barely sufficient to establish the entity of the doubting casuist. No wonder that such writers groping through the gloomy shades of ignorance and superstition, without one gleam of science or of genius to illuminate their devious way, should mistake privateers for "capers," or "freeboters," or "pirates," or latrunculil!" But it is not among the visionary lucubrations of Albericus Gentilis, or any other writer of the 15th century, that any man but your friend, in support of your objections, would resort, for "the maxims of public law, or the opinion of enlightened jurists."
His reference to the journals of Congress, during the revolutionary war, is wholly ineffectual, unless he can shew, what does not exist, that the American government took measures to discourage the practice of privateering. On the contrary, the sages of the revolution knew the efficacy of this mode of warfare, and actually encouraged it by giving the booty to the captors. Their only solicitude was to prevent privateers from injuring the trade of friendly and neutral nations. It was alone to effect this object that those "pointed instructions" were issued. And if an argument against the practice of privateering is to be adduced from the severity of their "instructions," and the penalties imposed in case of mal conduct; with much more force will the conclusion follow, that, soldiers ought not to be enlisted, employed, or "merely tolerated," because their commanders frequently issue the rigorous order that any of them found plundering on the field of battle, or who shall refuse to obey orders, shall under death.
Pardon me, here, sir, for incidentally remarking, that while you was employed is writing your objections against the encouragement of privateering, the price of English insurance across the Irish channel had increased more than twenty fold, in consequence of the danger of capture by American cruizers; and many of the loyal subjects of the "united kingdom" were zealously occupied in writing and preferring to "the lords of the admiralty," and "to the feet of the throne" humble remonstrances and petitions against American privateers! A fortuitous concurrence of efforts; but truly an excellent commentary on your text.
But how stand the writers in point of numbers and respectability, who are for, or against the principle that "privateering is merely tolerated, and is not approved," &c. In mercy to "Amicus Curiæ" I will deny myself the triumph of contrasting them. But permit me for a moment to close my eyes on the blaze of authorities which Amicus Juris Consultus has arrayed against you; that I may the better contemplate the dim and feeble tapers with which your friend has attempted to enlighten your path. What is the doctrine advocated by those few writers which Amicus Curiæ has cited? It is, that nations at war ought not to prey upon the commerce of each other by privateering. They all concede the right of killing your enemy in war, but doubt the propriety of weakening him and bringing him to terms by destroying his commerce. Stript of all disguise, this is the principle they advocate, and on which your friend attempts to support your objections;—a principle, which regards human blood as less precious than goods and chattels; and which tolerates man in cutting the throats of his fellow-beings, but gravely forbids him to destroy a bale of their merchandize!
But do even these writers aid you? No, Sir: And here on full consideration I feel bound to retract the liberal concession, that any writer whatever can be found, whose opinion is in coincidence with your objections. The authors cited by your friend, few as they are, and unknown and unread in the diplomatic world, feebly urge the general doctrine that privateering in war ought to be altogether abolished—not that one nation should refrain while its enemy indulges in the practice to the fullest extent—not that while two nations (Great Britain and the United Sates for instance) are at war, one of which (Great Britain) privateers to the extent of its ability, it would be "inconsistent with the public good," for the other (the U.S.) to encourage privateering. "Amicus Curiæ" may circumnavigate the whole ocean of ancient and modern authorities, without finding a principle thus unilateral, thus partial in its operation. It is terra incognita to every author of both the old and the new world. It is an "American discovery," and seems to have been reserved exclusively for the chancellor of this state. But whether posterity will claim this discovery as an honor, or view it as a reproach to the American name—whether it will be regarded as an evidence of expanded benevolence or contracted partiality, of patriotic feeling or foreign attachment, I willingly leave to history.
I have nothing further to add on the subject. If it has been shown that your objections are erroneous, both in principle and authority, my whole object is accomplished; convinced that is has been done effectually, this address is my valedictory on privateering, unless the indiscretion of your friends shall provoke further discussion.