To James McHenry
[New York, May 17, 1798]
My Dear Sir
I have received your letter of the instant.1 Not having seen the law which provides the Naval Armament,2 I cannot tell whether it gives any new power to the President that is any power whatever with regard to the employment of the Ships. If not, and he is left on the foot of the Constitution, as I understand to be the case, I am not ready to say that he has any other power than merely to employ the Ships as Convoys with authority to repel force by force, (but not to capture), and to repress hostilities within our waters including a marine league from our coasts.
Any thing beyond this must fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.
In so delicate a case, in one which involves so important a consequence as that of War—my opinion is that no doubtful authority ought to be exercised by the President—but that as different opinions about his power have been expressed in the house of Representatives,3 and no special power has been given by the law, it will be expedient for him, and his duty, and the true policy of the Conjuncture to come forward by a Message to the two houses of Congress declaring that “so far and no farther” he feels himself confident of his authority to go in the employment of the naval force; that as in his opinion the depredations on our trade demand a more extensive protection he has thought it his duty to bring the subject under the review of Congress by a communication of his opinion of his own powers—having no desire to exceed the constitutional limits.
This course will remove all clouds as to what The President will do—will gain him credit for frankness and an unwillingness to chicane the Constitution—and will return upon Congress the Question in a shape which cannot be eluded.
I presume you will have heared before this reaches you that a French Privateer has made captures at the mouth of our harbour.4 This is too much humiliation after all that has passed. Our Merchants are very indignant. Our Government very prostrate in the view of every man of energy.
ALS, Montague Collection, MS Division, New York Public Library; ALS (photostat), James McHenry Papers, Library of Congress; copy, Hamilton Papers, Library of Congress.
2. “An Act to provide an additional Armament for the further protection of the trade of the United States; and for other purposes” (1 Stat. 552 [April 27, 1798]). See McHenry to H, May 12, 1798, note 2.
3. On April 18, 19, 1799, in the debates preceding the enactment of “An Act to provide an additional Armament for the further protection of the trade of the United States; and for other purposes,” there was considerable discussion of one section of the bill. The section in question reads: “That, to secure and maintain the independent rights of commerce and navigation which the laws of nations and the stipulations of treaties acknowledge and sanction, the President of the United States is hereby authorized and empowered to employ the armed vessels of the United States, as convoys, whenever he may think proper to afford such protection, or in any other manner which, in his judgement, will best contribute to the general interests of the United States” (Annals of Congress, VIII, 1440). Jonathan Dayton of New Jersey, Robert G. Harper of South Carolina, Harrison Gray Otis and Samuel Sewall of Massachusetts argued that even if this section were rejected, the President had been granted the right to employ the vessels as he saw fit by the Constitution. John Nicholas of Virginia and Albert Gallatin of Pennsylvania, on the other hand, maintained that the President had no such right. The House voted to eliminate the section in question (Annals of Congress, VIII, 1440–59).
4. “The ship Merchant, Rosseter, of and from this port, bound to Bristol, and the ship Thomas, Holland, from Liverpool, bound to Philadelphia, are taken in lat 35, 45, by the French privateer Jean Bart, of 14 guns, and sent for Curracoa. The privateer was in chace of another ship” (Greenleafs [New York] New Daily Advertiser, May 16, 1798). See also the Gazette of the United States, and Philadelphia Daily Advertiser, May 16, 1798.