War Department 18 May 1798.
The Secretary of War will immediately be called upon, to furnish instructions, to the commanders of the armed vessels, destined to the protection of our coast, and to act as convoys to our trade. It becomes in consequence his duty, to suggest such circumstances, as require the most serious deliberation, and are connected with this subject.
The power of the President, must be considered as derived from, or limited by, the constitution and the laws of the U.S. as respects the employment, and consequently, the instructions to the commanders of said ships.
The Constitution, 2d Sect. 2 article provides “that the President shall be commander in Chief of the army and navy of the U.S. &c. and by the 8 section of the 1st article “That Congress shall have the power, to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water.” And, again, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers; and all other powers vested by this Constitution in the government of the U.S. or in any department or offices thereof.”
It is thus evident, that the President as Commander in Chief, cannot employ these vessels, or the navy, in acts of war, previous to war being declared by the Congress; nor in acts of reprisals, short of war, for the same reason, Congress alone having the power to authorise the one or the other.
As to the laws of the United States. By the “act providing a naval armament passed the 1st of July 1797. The President of the U.S. is empowered “should he deem it expedient to cause the Frigates United States, Constitution & Constellation to be manned and employed” The same act authorises the President, if circumstances should hereafter arise, which in his opinion may render it expedient to increase the strength of the Revenue Cutters, so that the number of men employed, do not exceed 30 marines and seamen to each Cutter, and to cause the said Revenue Cutters, to be employed to defend the sea coast, and repel any hostility to their vessels and commerce within their jurisdiction.”
The act providing an additional armament for the further protection of the trade of the U.S. and for other purposes, passed the 27th of April 1798 is silent even on the subject of employing the vessels.
From the foregoing laws, the President cannot derive authority to do more than employ the ships as convoys, nor extend the instruction to their commanders further, than to repel force by force by force, not including the power of capture, or even the exertion of force a moment longer than it is employed against them.
It is singular that the provision of the act of the 1st of July 1797, only extends, to direct and authorise the employment of the Revenue Cutters in an explicit manner, viz. “To defend the sea coast and repel any hostility to their vessels and commerce, within their jurisdiction.”
This is the extent to which the instructions, can by any construction be carried. All beyond is considered to come within the sphere of reprisals, and to require the explicit sanction of that branch of the government, which is alone constitutionally authorised to grant letters of marque and reprisal.
A case or two may serve to fix the attention to the points they embrace. 1st An armed vessel is employed as a convoy, or lexiographically, to secure a safe passage to one, or a fleet of our merchantmen. One or more of these are taken possession of by an armed vessel of another Country; the convoy retakes the possession, and conveys the vessel safely to her destined port. Here as we are not at war with any nation, not having declared it, a claim is made under the original capture. What is to be done? A recapture comes, it is supposed, within the idea of captures, which Congress are alone empowered to authorise, and make rules respecting, whether on land or water.
Again, It is understood to be a general practice and sanctioned into right by custom, for national armed vessels to insist upon and force the release of all prisoners on board any vessel of another Country. One of our armed vessels meets with a French or other vessel, which has captured, on any pretence, a number of our defenceless merchantmen, and has on board most of the crews belonging to them. Can our commanders insist upon and force the release of their countrymen?
The result, from the preceding, is an opinion, that, as the subject of instructions to the Commanders of the vessels (one of which is ready to go to sea, and <
the> others nearly so) for employment, involves a question so delicate and important, as that of war, it will not be proper for the President to proceed upon doubtful and undefined authority. But that as different opinion respecting the authority he possesses, have been expressed in the House of Representatives, and no explicit power has been given to him by law, adequate to the employment, of the vessels, with the efficacy and utility, the depredations upon our commerce demands, it has become expedient, the < [. . .]> duty of the President, and the true policy of this conjuncture in the affairs of our Country to inform Congress by Message. “The extent to which he feels himself confident of his authority at this time to direct the employment of the naval force of the country. And that the depredations upon our trade demand more ample instructions for < the> commanders of our naval force than he thinks himself empowered to give them. That one vessel is now ready to proceed to sea, and others are nearly so; but that it rests with Congress alone to take such measures as will ensure their efficacious and beneficial employment, commensurate with the protection required by our suffering commerce. And that by this communication, he means only to exhibit his anxious solicitude, to avoid an exercise, direct or constructive of any power, not vested in him by the constitution or laws of his country.”
This course it is respectfully conceived will “remove all clouds as” to what the President will do; will add to that credit which he justly possesses for frankness and an unwillingness to chicane the Constitution; and will return upon Congress the question in a shape which cannot be eluded.
With the greatest respect, I have the honour to be Sir / your most ob & hble St.
MHi: Adams Papers.