31 Mar., 1863.
When discussing the regulations concerning “Letters of Marque,” &c a few days since, I made certain suggestions, and you invited me to communicate any views I might entertain, in writing.
I have felt some delicacy, I may say disinclination, to take any active part in this matter, because I have from the beginning of our difficulties discouraged the policy of privateering in such a war as this we are now waging. The rebels have no commercial marine to entice and stimulate private enterprise and capital in such undertakings, provided the policy were desirable. We, however, have a commerce that invites the cupidity, zeal and spirit of adventure, which, once commenced, will be difficult to regulate or suppress. A few privateers let loose among our shipping, like wolves among sheep, would make sad havoc, as the Alabama and the Florida bear witness.
It is proposed to encourage private enterprize to embark in undertaking to capture the two wolves or privateers that are abroad devastating the seas, and it is said, in addition to the wolves they may be authorized to catch blockade runners. The inducement, I apprehend, will not meet a favorable response. There may be vessels fitted out to capture unarmed prizes, but not of sufficient force to meet and overcome the Alabama; if not, the great end and purpose of the scheme will fail of accomplishment.
To clothe private armed vessels with governmental power and authority, including the belligerent right of search, will be likely to beget trouble, and the tendency must unavoidably be to abuse. Clothed with these powers reckless men will be likely to involve the Government in difficulty, and it was in apprehension of that fact, and to avoid it, I encountered much obloquy and reproach at the beginning of the rebellion, and labored to institute a less objectionable policy.
Propositions for privateers, for yacht squadrons, for naval brigades, volunteer navy, &c., &c. were, with the best intentions in most instances, pressed upon the Dep't, regardless of the consequences that might follow from these rude schemes of private warfare. It was to relieve us of the necessity of going into these schemes of private adventure, that the “Act to provide for the temporary increase of the Navy,” approved July 24, 1861, was so framed as to give authority to take vessels into the Naval service and appoint officers for them, temporarily, to any extent which the President may deem expedient. Under other laws, seamen may be enlisted and their wages fixed by executive authority; and the officers and men so taken temporarily into the Naval service are subject to the laws for the government of the Navy. An “Act for the better government of the Navy,” approved July 17,1862, grants prize money to “any armed vessel in the service of the United States,” in the same manner as to vessels of the Navy.
These laws, therefore, seem, and were intended to provide all the advantages of letters of marque, and yet prevent in a great measure the abuses liable to spring from them. Private armed vessels, adopted temporarily into the Naval service, would be more certainly and immediately under the control of the government, than if acting only under a general responsibility to law.
It will be necessary to establish strict rules for the government of private armed vessels, as to some extent they will be likely to be officered and manned by persons of rude notions and free habits. Congress after authorizing Letters of Marque in the War of 1812, adopted the necessary legislation for the vessels bearing them, by the Act of June 26th of that year. This act has not been revived. The recent “Act concerning letters of marquee” &c. &c. authorizes the President to “make all needful rules and regulations for the government and conduct of private armed vessels, furnished with letters of marque.” In pursuance of this authorization, the “regulations” have been prepared, embracing the provisions of the statute enacted during the War of 1812. These regulations establish, as the statute did, a penal code. They impose fines and assume to authorize punishments, including even capital punishment.
As suggested in our interview, I question the validity of such proceedings. Can Congress delegate this power of penal legislation to the President? and if to the President, why may it not to any branch of the Executive?
If it can be granted for this special purpose — the government of private armed vessels — why not for any other purpose? And if it can delegate the power of penal legislation, why could it not delegate any other power, or powers, to the President, to Commissioners, or even to a Committee of its own body, to sit during the recess? Why could it not delegate to the Secretary of the Treasury to legislate respecting imports and foreign trade, or to the Post-Master General full power of legislation respecting post offices and post routes?
The power of imposing penalties and inflicting punishments is the essence of legislative power, for it is the penalty of transgression that gives force to law. These regulations also establish rewards as well as penalties. They provide that a large bounty shall be paid to private armed vessels in certain cases. But no fund is appropriated for the purpose by the Act, nor has any provision elsewhere been made for it. Can Congress delegate to the President the power to appropriate the public moneys, or to take them without specific appropriation, or pledge the public faith at his discretion for an indefinite amount?
As I have already said, I have doubts in these particulars. They are expressed with some reluctance, because in the uneasy condition of the public mind, growing out of the lawless depredations of the semi-piratical cruisers that are abroad, I am unwilling to interpose anything which may be construed into an obstacle, to repress public indignation, which is so justly excited. I did not regret that Congress enacted a law authorizing letters of marque; because I verily believe that, with it, England can be made to prevent her mercenary citizens from making war on our commerce under a flag that has no recognized nationality. If the police of the sea is to be surrendered, and rovers built by English capital and manned by Englishmen are to be let loose to plunder our commerce, let England understand that her ships will suffer, and her commerce also be annoyed and injured by private armed ships. With her distant and dependent colonies, no nation has greater cause to oppose maritime robbery and plunder, such as is being inflicted on us by Englishmen and English capital, than Great Britain.
The West Indies are, notoriously, harbors of refuge for the corsairs that are plundering our merchants, as well as for the infamous and demoralizing business of running our blockade, to encourage the insurgents who are waging war on our government. Of these ports, those of England are the worst, and a vast amount of English capital is engaged in illicit traffic, and her people and authorities exhibit sympathy for, and afford aid to, the insurgents and their abettors, and corresponding opposition to this Government.
The English ship-yards are filled with vessels built and building for the rebel service, and if measures are not taken to prevent, these will soon swarm the seas to capture, condemn and destroy American property, without a port into which they can send their captures for adjudication. Enjoying greater advantages than the corsairs and sea-rovers that once infested the ocean, because protected, harbored, & sheltered by governments in alliance with, and professedly friendly to us, while ordinary pirates are outlaws, this species of lawless outrage cannot be permitted to go on.
England should be warned that we cannot permit this indirect war to continue with impunity — that it will provoke and justify retaliation, and that if her people and government make war upon our commerce, by sending abroad rovers with no nationality, to prey upon the property of our citizens, it will be impossible to restrain our people from retaliatory measures.
I am, respectfully,
Your Obdt. Servt.
Secty. of Navy.
Hon. Wm. H. Seward,
Secty. of State.
SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 252-6