Doc. 63. granting letters of marque.
Navy Department, Washington, October 1, 1861.Sir: In relation to the communication of R. B. Forbes, Esq., a copy of which was sent by you to this Department on the 16th ultimo, inquiring whether letters of marque cannot be furnished for the propeller “Pembroke,” which is about to be despatched to China, I have the honor to state that it appears to me there are objections to, and no authority for granting letters of marque in the present contest. I am not aware that Congress, which has the exclusive power of granting letters of marque and reprisal, has authorized such letters to be issued against the insurgents; and were there such authorization, I am not prepared to advise its exercise, because it would, in my view, be a recognition of the assumption of the insurgents that they are a distinct and independent nationality. Under the act of August 5, 1861, “supplementary to an act entitled ‘An act to protect the commerce of the United States and to punish the crime of piracy,’ ” the President is authorized to instruct the commanders of “armed vessels sailing under the authority of any letters of marque and reprisal granted by the Congress of the United States, or the commanders of any other suitable vessels, to subdue, seize, take, and, if on the high seas, to send into any port of the United States any vessel or boat built, purchased, fitted out, or held,” &c. This allusion to letters of marque does not authorize such letters to be issued, nor do I find any other act containing such authorization. But the same act, in the second edition, as above quoted, gives the President power to authorize the “commanders of any suitable vessels to subdue, seize,” &c. Under this clause, letters permissive, under proper restrictions and guards against abuse, might be granted to the propeller “Pembroke,” so as to meet the views expressed by Mr. Forbes. This would seem to be lawful, and perhaps not liable to the objections of granting letters of marque against our own citizens. and that too without law or authority from the only constituted power that can grant it. I have the honor to transmit herewith a copy of a letter from Messrs. J. M. Forbes & Co. and others, addressed to this Department, on the same subject. I am, very respectfully, your obedient servant,