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.

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.

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.

It is well known that these were the sentiments of the founders of our Republic, which, in its early treaty with Prussia, took the lead in denouncing the whole system of privateering. Is it not better to follow this example, until positive, irresistible exigencies of war compel us to depart from it? If we cannot do this, let us at least keep from affording new facilities to an offensive system. What our country denounced in other days should not now be proclaimed and glorified.

Mr. Sumner. By the treaty of 1785.

Mr. Sumner. The Prussian treaty.

Mr. Sumner. It was a stipulation to the effect, that, in any war between the United States and Prussia, neither party should commission privateers to depredate on the commerce of the other.

Mr. Sumner. I wish the treaty had been such as to afford a stronger example; but it must be accepted as the judgment of our country at that time; and to my mind it is a practical denunciation of privateering, worthy of the illustrious character by whom it was negotiated, who was none other than Benjamin Franklin. But this treaty is not all. I do not forget how Jefferson wrote to France, “The benevolence of this proposition is worthy of the nation from which it comes, and our sentiments on it have been declared in the treaty to which you are pleased to refer, as well as in some others which have been proposed,”[143] thus testifying to our treaty and to his own sentiments; and, at a later day, that John Quincy Adams, in his instructions to Mr. Rush, of July 28, 1823, directing him to negotiate a treaty with Great Britain for the abolition of privateering, declared that this was “an object which has long been dear to the hearts and ardent in the aspirations of the benevolent and the wise, an object essentially congenial to the true spirit of Christianity”; and he adopted the earlier declaration of Franklin, “It is time, it is high time, for the sake of humanity, that a stop were put to this enormity.”[144]

Mr. Sumner. The Senator will pardon me, if I say that I know no better denunciation than that of a treaty negotiated by Franklin. A treaty is the act of the nation, and testifies to the sentiments of the nation. If the same denunciation did not find place in more important treaties, it is reasonable to suppose that it was not acceptable to the other contracting parties. It is an historic fact, that Franklin sought to embody this denunciation in the very treaty by which our independence was acknowledged, and thus to associate it with our national being.[145] Indeed, it was a standing offer from our Government to foreign powers.[146] Unquestionably the Constitution gives Congress the power to issue letters of marque, but the reason is obvious: because privateering was recognized at that time as a proper agency of war. The framers of the Constitution did not divest the government they created of a power which belonged to other governments according to the existing usage of nations. In recognizing this power, they express no opinion upon its character. For that we must go to the treaty, and to the words and efforts of Franklin, Jefferson, and John Quincy Adams, speaking and acting officially for the nation,—all but Franklin subsequent to the Constitution.

And now, Sir, at the risk of repetition, I enumerate my objections to this bill.

1. It proposes to cruise against a non-existent commerce, for the sake of a non-existent booty.

2. It accords to private individuals the belligerent right of search, which must be fruitful of trouble in our relations with the great neutral powers.

3. It gives to the President, in his discretion, the power to issue letters of marque in any future wars, without any further authority of Congress, when this power should always wait for the special authority of Congress on the declaration of war.

4. It is in the nature of a menace to foreign nations, and therefore worse than useless.

5. It vitalizes and legalizes a system which civilization always accepted with reluctance, and our own country was one of the earliest and most persistent to denounce.

6. It will give us a bad name in history.

It does all this without accomplishing any substantial good. If it be said that ships are needed for transportation, or for the blockade, or in order to pursue pirates on the sea, then, I repeat, let the Government hire them. The way is easy, and it is also the way of peace. To this end I offer a substitute for the present bill, which will secure to the Government all the aid it can desire, without the disadvantage or shame of a measure which can be justified only by overruling necessity. I will read the substitute.

If Senators desire a militia of the seas, here it is,—a sea militia, precisely like the land militia, mustered into the service of the United States, under the command of the United States, and receiving rations and pay from the United States, instead of sea-rovers, not mustered into the national service, not under national command, and not receiving rations or pay from the nation, but cruising each for himself, according to his own will, without direction, without concert, simply according to the wild temptation of booty. Such a system on land would be rejected at once. Nobody would call it a militia. Do not sanction it now on the ocean; or, if you are disposed to sanction it, call it not a militia of the seas.

Mr. President,—The question is now presented precisely, whether the Senate will confine this bill in operation to the war in which we are actually engaged for the suppression of the Rebellion, or make it prospective in character, applicable to some war in the unknown future, to some country not named, to some exigency not now understood, and therefore, in its nature, a notice or warning, if not a menace, to all countries.

This is the precise question: Shall the bill be confined to our own time, to this day, to this hour, to something we can see, to what is actually before us; or shall it be extended also to the future, to something we cannot see, to what is not actually before us, and with regard to which we can have no knowledge, unless we listen to our fears?

If the words are introduced as a menace, then are they out of place and irrational. Suppose any such words in the legislation of Great Britain or France at a moment when they might be interpreted as applicable to us, who can doubt their injurious effect upon public opinion here? A brave and intelligent people will not bend before menace, nor can any such attempt affect a well-considered national policy. All history and reason show that such conduct is more irritating than soothing. Sir, if you are in earnest, as I cannot doubt, to cultivate those relations of peace and good-will with foreign nations which are in themselves a cheap defence, you must avoid all legislation which can be misinterpreted, especially everything which looks like menace.

I cannot pretend to foresee the future. I know not that other wars may not be in store for us, that we may not be called to confront other powers, in alliance, perhaps, with our Rebels, and to make still greater efforts. All this may come; but I pray not. If it does come, then let us meet its duties and responsibilities like Senators; but do not rush forward recklessly, like the bully with his bludgeon, ready to strike wherever there is a head. I do not believe in such legislation; nor do I believe in any legislation providing new facilities for a war, or tending to produce irritation and distrust. Prepared always for the future, I would not challenge it. Preparation and provocation are widely different. Nor would I do anything out of season. There was characteristic wisdom in the remark of the venerable Chief Justice of England, Sir Matthew Hale, when he said that “we must not jump before we get to the stile.” It seems to me that Senators who are pressing this bill forget this time-honored injunction, and try to make their country take a jump prematurely.

…

You have just listened to the Senator from California [Mr. McDougall], announcing that perhaps before the next meeting of Congress there may be foreign war; and you have not forgotten his elaborate speech only the other day, when he openly challenged war with France. I ask Senators, if, at this critical moment, they are ready to follow him in his effort to carry us in that direction. For myself, I protest against it. I am heart and soul for putting down this Rebellion without playing into the hands of Rebels. Now it must be plain to all that every word calculated to draw or drive any foreign government into alliance with the Rebellion does play into the hands of Rebels. Senators may be willing to distract the attention of the country from our single object, to impair the national force, and help surrender all to the uncertainties and horrors of accumulating war. Let me not enter into their counsels. It is not my habit to shrink from responsibility; personal risks I accept willingly; but I confess anxiety that my country should not rush abroad in quest of new dangers, whose only effect will be to increase the national calamities.

It will be observed, that, by the amendment already adopted, the President alone, without the coöperation of Congress, is empowered to make what are called all needful rules and regulations for the government and conduct of these privateers, and for the adjudication and disposal of prizes and salvages made by them. But formerly it was not so ordered. No such large power was ever before vested in the President. By the statute of June 26, 1812, a system was provided, in seventeen sections, for the government of letters of marque, prizes, and prize goods. These sections relate to the formalities required from persons applying for letters of marque, the bonds to be given, and the sureties, how the captured property shall be forfeited, the distribution of the prize money, the distribution of salvage, how the prize shall be brought in for adjudication, regulations concerning prisoners found on board of prize vessels, instructions for the privateers, bounty for destroying the enemy’s vessels, instructions to the commanding officers of privateers to keep journals, how owners of privateers are punishable for violating the revenue laws of the United States, how offences on board private armed vessels are punishable; also the commissions of collectors and consuls upon prize goods, and the uses to which they shall be applied. Here is a statute, in itself a code, containing provisions exclusively applicable to these important matters, all determined by Congress in advance; but it is now proposed that Congress shall abdicate, leaving to the President alone this large power.

I call attention to one matter in the statute, namely, “How offences on board private armed vessels shall be punished.” It is enacted, “that all offences committed by any officer or seaman on board any such vessel having letters of marque and reprisal, during the present hostilities against Great Britain, shall be tried and punished in such manner as the like offences are or may be tried and punished, when committed by any person belonging to the public ships of war of the United States.”[147]

I would ask if it is in the power of the President merely by regulation to determine how offences on board private armed vessels shall be tried and punished? I take it that Congress must deal directly with this question. I am sure that it is unwise for Congress to renounce a duty belonging to it obviously under the Constitution, and which in former times it exercised. Senators sometimes complain that great powers are assumed by the President; but, unless I misread this bill, they are about to confer on him powers large, indeed, beyond precedent. There is, in the first place, the power to declare whether, in case of war with a foreign nation, letters of marque shall be issued,—a high prerogative, in times past reserved exclusively to Congress. But, not content with this, they would confer upon him plenary powers, as legislator, with regard to everything to be done by the letter of marque, and with regard, also, to its possible prizes. As once the French monarch exclaimed, “The State, it is I!”—so, when we have conferred these powers, one after another, on the President, I think he may make a similar exclamation.

The proposition on which a vote is now asked has all that is good in the pending measure, without any of the unquestionable disadvantages. I am unwilling to trespass upon the Senate, and would hope that I am not too earnest; but the question, to my mind, is of no common character.

The Senator who presses this measure seeks to employ private enterprise in all wars, domestic or foreign: I show him how it can be done. He seeks to enlist the private marine of the country in the public service: I show him how it can be done. He seeks to contribute at this moment to the national force: I show him how it can be done. Say not that I am against the employment of private enterprise. Nor say that I would allow our private marine to rot at the wharf. Nor say that I would begrudge anything needed by the national force. To this end the Senate cannot go further than I. All that the Senator would do I would do, but in a way to avoid those embarrassments and difficulties necessarily incident to privateering, and so as to be in harmony with the civilization of our age. Nor shall it be said that I shrink from any of the responsibilities which belong to us with regard to foreign nations; but I desire to say, that among the highest responsibilities which any can recognize is that of doing nothing needlessly which shall add to existing troubles or give the country a new burden.

In conclusion, let me once more remind you that every privateer upon the ocean carries the right of search. Wherever he sails, he is authorized to overhaul neutral ships in search of contraband, or, it may be, to determine if the voyage is to break the blockade. A right so delicate and grave I would reserve to the Government, to be exercised only by national ships. I cannot err, when I insist that it shall be intrusted to those only whose position, experience, and relations with the Government give assurance that it will be exercised with wisest discretion.

If, in order to secure private enterprise and to enlist all its energies, it were necessary to have privateers, then the argument of the other side might be entitled to weight. But all that you desire can be had without any such resort, and without any drawback or disadvantage. Let the Secretary of the Navy hire private ships, wherever he can find them, and put them in commission as national ships, with the rations, pay, officers, and character of national ships. This will be simple and most effective. I am at a loss for any objection to it: I can see none.

I may be mistaken, Sir, but I speak in frankness. To my mind the question between the two propositions is too clear for argument. On one side it is irrational, barbarous, and fruitless, except of trouble. On the other side you have practical strength, and the best assurance of that prudence which is the safeguard of peace. Between the two let the Senate choose.

APPOINTMENTS TO THE NAVAL ACADEMY.

Therefore do I think that the Government cannot be too careful in securing the best youths, and I welcome cordially the proposition of the Senator from Rhode Island. I think it entirely practicable, and also most important. I hope the Senate will adopt it. I cannot doubt that such places should be given only to the most worthy, discarding personal or political favoritism; but there must be a rule by which to ascertain the most worthy.

EXEMPTION OF CLERGYMEN FROM MILITARY CONSCRIPTION.

I shall not be led into debate, but you will let me declare my conviction that the proper duty of the clergyman, if he joins the army, is as chaplain, ministering to the sick, the wounded, the dying, and teaching the living how to die. At the same time, I can well understand that there may be occasions when another service will be required, or when an irresistible impulse may change the chaplain into the soldier.

An eminent writer of our age, the late Lord Macaulay, has said positively that a clergyman should never fight. The motion which I make has no such extent. It simply proposes that the law shall not require him to fight.

In former days bishops have worn coats of mail and led embattled forces, and there are many instances where the chaplain has assumed all the duties of the soldier.

At the famous Battle of Fontenoy, where the French, under Marshal Saxe, prevailed over the united armies of England, Austria, and Holland, there was a British chaplain, with a name subsequently historic, who by military service acquired the title of “The Fighting Chaplain of Fontenoy.” This was the renowned Edinburgh professor, Adam Ferguson, author of the “History of the Roman Republic.” And only a few days ago I presented a petition for a pension from the widow of Rev. Arthur B. Fuller, chaplain, who fell fighting at Fredericksburg. But these instances are exceptional. Legislation cannot be founded on exceptions.

The Senate is engaged in maturing a permanent law,—not merely for a year, not only for the present Rebellion, not for any exigency of the day, but an enduring statute,—and as such it will be a record of the sentiments and the civilization of our time. But I am not disposed to present this question on any ground of sentiment, though such an appeal would be difficult to answer.

Time is precious, and I content myself with another appeal,—I mean to practical experience. I think I do not err, when I say, that, in the history of the Christian world, you will not find a single evidence of a country where clergymen have been compelled to serve as soldiers,—at least I do not recall such instance,—while the most military country of modern times has refused to sanction the compulsion. I have before me the well-considered military statute of France, where everything was matured with the greatest care and consideration, and so as to secure the largest amount of service. No exemption was recognized, except after conscientious debate and for sufficient reason. Therefore this statute is testimony of the highest character. But here I find exemption, not only of the clergy, including all denominations recognized by the State, but also of students of divinity preparing to enter the ministry. If not absolutely indifferent to practical experience, the example of a military people like the French, especially in exemptions from conscription, cannot be neglected. I doubt if we shall lose by following it.

I do not understand that our clergy throughout the United States are rich. In some of the larger towns they may be comparatively so, but in the country such is not the case. Goldsmith’s village preacher, “passing rich with forty pounds a year,”—that is, about two hundred dollars,—was not unlike large numbers of the clergy among us. Now, Sir, to compel persons living on such a small allowance to pay two hundred and fifty dollars for a substitute is really asking too much. I think it unreasonable; and I think my colleague, who is pressing this bill with so much energy, would adapt himself better to the sentiment of the country and of civilization, if he admitted this natural and humane exemption into his list.

PROTEST AGAINST FOREIGN INTERVENTION, AND DECLARATION OF NATIONAL PURPOSE.

Whereas it appears from the diplomatic correspondence submitted to Congress, that a proposition, friendly in form, looking to pacification through foreign mediation, has been made to the United States by the Emperor of the French, and promptly declined by the President; and whereas the idea of mediation or intervention in some shape may be regarded by foreign governments as practicable, and such governments, through this misunderstanding, may be led to proceedings tending to embarrass the friendly relations which now exist between them and the United States; and whereas, in order to remove for the future all chance of misunderstanding on this subject, and to secure for the United States the full enjoyment of that freedom from foreign interference which is one of the highest rights of independent states, it seems fit that Congress should manifest its convictions thereon: Therefore—

Resolved (the House of Representatives concurring), That, while in times past the United States have sought and accepted the friendly mediation or arbitration of foreign powers for the pacific adjustment of international questions, where the United States were party of the one part and some other sovereign power party of the other part; and while they are not disposed to misconstrue the natural and humane desire of foreign powers to aid in arresting domestic troubles, which, widening in influence, have afflicted other countries, especially in view of the circumstance, deeply regretted by the American people, that the Rebel blow aimed at the national life has fallen heavily upon the laboring population of Europe; yet, notwithstanding these things, Congress cannot hesitate to regard every proposition of foreign interference so far unreasonable and inadmissible, that its only explanation can be found in a misunderstanding of the true state of the question, and of the real character of the war in which the Republic is engaged.

Resolved, That the United States are grappling with an unprovoked and wicked Rebellion, which is seeking the destruction of the Republic, that it may build a new power, whose corner-stone, according to the confession of its chiefs, shall be Slavery; that for the suppression of this Rebellion, thus saving the Republic and preventing the establishment of such a power, the National Government is employing armies and fleets, in full faith that the purposes of conspirators and rebels will be crushed; that, while engaged in this struggle, on which so much depends, any proposition from a foreign power, whatever form it take, having for object the arrest of these efforts, is, just in proportion to its influence, an encouragement to the Rebellion, and to its declared pretensions, and on this account is calculated to prolong and embitter the conflict, to cause increased expenditure of blood and treasure, and to postpone the much desired day of peace; that, with these convictions, and not doubting that every such proposition, although made with good intent, is injurious to the national interests, Congress will be obliged to look upon any further attempt in the same direction as an unfriendly act, which it earnestly deprecates, to the end that nothing may occur abroad to strengthen the Rebellion, or to weaken those relations of good-will with foreign powers which the United States are happy to cultivate.

Resolved, That the Rebellion, from its beginning, and far back even in the conspiracy which preceded its outbreak, was encouraged by hope of support from foreign powers; that its chiefs constantly represented the people of Europe as so far dependent upon regular supplies of the great Southern staple, that, sooner or later, their governments would be constrained to take side with the Rebellion in some effective form, even to the extent of forcible intervention, if the milder form did not prevail; that the Rebellion is now sustained by this hope, which every proposition of foreign interference quickens anew, and that without this life-giving support it must soon yield to the just and paternal authority of the National Government; that, considering these things, which are aggravated by the motive of the resistance thus encouraged, the United States regret that foreign powers have not frankly told the chiefs of the Rebellion that the work in which they are engaged is hateful, and that a new government, such as they seek to found, with Slavery as its acknowledged corner-stone, and with no other declared object of separate existence, is so far shocking to civilization and the moral sense of mankind that it must not expect welcome or recognition in the Commonwealth of Nations.

Resolved, That the United States, confident in the justice of their cause, which is the cause of good government and of human rights everywhere among men, anxious for the speedy restoration of peace, which shall establish tranquillity at home and remove all occasion of complaint abroad, and awaiting with well-assured trust the final suppression of the Rebellion, through which all these things, rescued from present peril, will be secured forever, and the Republic, one and indivisible, triumphant over its enemies, will continue an example to mankind, hereby announce, as their unalterable purpose, that the war will be vigorously prosecuted, according to the humane principles of Christian nations, until the Rebellion is overcome; and they reverently invoke upon their cause the blessing of Almighty God.

Resolved, That the President be requested to transmit a copy of these resolutions, through the Secretary of State, to the ministers of the United States in foreign countries, that the protest and declaration herein set forth may be communicated by them to the governments near which they reside.