The Constitutional Debate over a Standing National Navy

There is a gap in most histories of the United States Navy. The blank space lies between the end of the American Revolution and the re-establishment of the Navy in the 1790s. This is not the product of poor research; it is difficult to write about a Navy that did not exist. After the standing down of the Continental Navy the Founding Fathers sought to include the idea of a nationally organized navy in the Constitution of 1787. Unlike the standing army and militia question, the question of a standing, centralized navy has not gotten its due attention.

The best attempt at piecing together the hypothetical navy of the Constitution was Marshall Smelser’s 1959 book The Congress Founds the Navy: 1787-1798.[1] Smelser closes the introduction by describing the problem in answering the standing navy question: one must sort through patchy historical records to find the views concerning a standing navy held by the Constitution’s framers. Five naval matters merited codification in the Constitution: the power of Congress to provide and maintain a navy, the President’s command of that navy, the proscription of individual states keeping ships of war without the consent of Congress, federal court jurisdiction over “all cases of admiralty and maritime jurisdiction,” and Congress’s power to issue letters of marque and reprisal.[2]

Examining how these issues played into their respective clauses of the U.S. Constitution requires not only researching the small amount of available information but also putting that information into a cohesive narrative. The surviving records of the Constitutional Convention, even with James Madison’s notes, are sparse and shed very little light on the founders’ views. The Federalist Papers add more than the convention notes to our understanding of at least how a handful of framers understood the role of a navy. Of course, the framers were the drafters but the assent of at least nine of thirteen state ratification conventions was necessary for this proposed constitution to be ratified. It is also important to note that just as states had their militias, eleven of thirteen had their own vessels for defense. At the state level, one can find a vigorous debate over a standing navy.[3] Within that debate were a number of arguments about why a national navy should or should not exist. Those involved in the national and state conventions were acutely aware of the Prohibitory Act—a naval blockade of North America—in 1775 and how this instigated the construction of the Continental Navy as well as the issuance of letters of marque. One student put it that “the earliest assertions of American sovereignty came in the context of maritime affairs was natural given the prominence of sailors and waterfront residents in the pre-Revolutionary British Empire.”[4]

The preponderance of the fighting age framers were army men. Only one, John Langdon of New Hampshire, had ever captained his own ship. Nathaniel Gorham of Massachusetts owned a packet boat but there is no account of his captaining a vessel. Nevertheless, Langdon’s role with the Continental Navy cannot be overstated. His hometown of Portsmouth, New Hampshire, was—and still is to this day—an important base of operations for the United States Navy. Langdon’s correspondence speaks to the logistical problems of the Continental Navy and his tempestuous relationship with John Paul Jones. One would expect a greater fraction of the dialogue on a standing navy to have come from Langdon and the New Hampshire ratification convention. Regrettably, this was not the case. John Langdon and fellow New Hampshire delegate Nicholas Gilman arrived very late to the Constitutional Convention, so late as to have been little better than useful “yea” votes. Neither made any great contribution to the final draft. Similarly, while a standing navy did come up at the New Hampshire state convention, it was hardly a pivotal issue.[5]

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Other founding generation figures with maritime experience included Tristram Dalton of Massachusetts. Dalton served as one of Massachusetts’ first senators alongside framer Caleb Strong. New Hampshire state delegates Nathaniel Rogers, William Simpson, and Christopher Tappan had some stake in trade or shipbuilding. Ezra Green had served as John Paul Jones’ surgeon on the Bonhomme Richard.[6] There was a smattering of other maritime figures at state and national levels, but none reached the prominence of their army peers like George Washington or Alexander Hamilton.

When considering military questions during the founding, George Washington’s opinions held the greatest weight. Working backward from his presidency one can find his commitment to the idea of a navy. Washington maintained a construction program although it would be left to his successor, John Adams, to re-create the Navy in 1798.[7] Wearied of the limitations of the Continental Navy in 1783, Washington addressed the need for a Navy in his Sentiments on a Peace Establishment. Although the bulk of the address focuses on ground forces, Washington also stated the need for a navy as soon as there was a surplus of funds after paying the massive war debts.[8] Washington wrote the address during the waning years of the confederation government. It is often lost on the casual reader that the confederation government lasted for eleven years. The confederation placed in its congress all war-making powers including the establishment of a navy and issuing of letters of marque, and it even served as the court of admiralty. However, no appropriations for a navy or construction could occur without the assent of nine states.[9] Washington mentioned protection of commerce as a key reason for a navy. This was a consideration for other framers including Alexander Hamilton.

Hamilton often had a prescient insight during the founding period. Though he is traditionally understood as a proto-monarchist among the framers, his understanding of military, commercial, and diplomatic affairs were without rival in his time. Hamilton came to his consolidating ideology through experience as an army officer in the Revolutionary War. Like Langdon and the Navy, Hamilton struggled against the logistics and underfunding of the previous government. In his pamphlet Federalist no. 11, Hamilton incorporated his knowledge of commerce and defense matters in calling for the founding of a navy.

Though a short essay published to a few doubting New Yorkers, Hamilton’s writing requires unpacking meaning sentence by sentence. Hamilton rightfully figured that international trade and diplomatic relations would be intertwined. Indeed, the United States’ involvement in the “carrying trade” was already raising the ire of Europeans. Four of the five signatories of the Treaty of Paris were naval powers and each had interests and territories in North America and the Caribbean. The United States was the only one without a navy and, naturally, there was no treaty of commerce with Great Britain after the war. Hamilton wanted the United States to maintain neutrality but, in a point that frequently escaped his contemporaries, neutrality requires power or some mutual agreement of larger states. This power could not be left to individual states. Not only would state fleets be too small, but without a national military logistical infrastructure the procurement of raw materials, especially from the southern states rich with tar, pitch, and timber, would remain as nightmarish as it had been during the war.[10]

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Hamilton was not speaking theoretically about state navies. State navies, if one is generous with the label, existed alongside state militias in eleven of the thirteen original colonies. These ranged from formidable fleets like Virginia’s to a handful of coastal defense ships, as was the case in New Hampshire. Massachusetts had one of the better-organized state navies with its own state naval board and was generous with letters of marque to privateers for capturing or thwarting British naval power. The Massachusetts state navy often found itself competing with the largesse of privateers for able-bodied seamen. Regrettably, this navy’s most memorable event was the ill-fated 1779 Penobscot Expedition which became the United States’ worst naval defeat until the attack on Pearl Harbor.[11]

Though plagued with problems with illicit trade with the British, Connecticut had a less maligned Navy that lent some of its sea power to protect New York. In the south, South Carolina’s ships went to sea more often than any state; South Carolina was only out-spent by Massachusetts in providing for its state navy. This was fortuitous given the shift of the war southward toward Charlestown in 1780. Neither North Carolina nor Georgia had much in the way of coastal ships of war with the former relying heavily on Virginia.

As noted earlier, assent to the Constitution rested with state delegates at their ratification conventions. While one may safely generalize that a standing navy was less controversial than a standing army, this was far from a universal opinion at the state level. Even at the Philadelphia convention Virginia’s Patrick Henry warned against the threat of becoming invested in empire building if the new American government was too centralized, or “consolidated” to use his term. Included in his imperial imagery was not only a standing army but a navy as well.[12] Patrick Henry fought a losing battle against ratification in Virginia just as Luther Martin would in Maryland.

At the New York ratification convention Alexander Hamilton and John Jay had a battle of their own. Hamilton was singular in his politics among the New York delegates in Philadelphia. Jay was serving as acting Secretary of State at the time of the Constitutional Convention. New York’s John Lansing and Robert Yates were anti-federalists opposed to the Constitution on grounds that the commission given to them by New York was for revising the Articles of Confederation rather than writing a new constitution.[13] Melancton Smith gave one objection to a national navy, stating that it was not the business of the government in the present to plan for future possibilities. Smith ultimately broke ranks with anti-federalists and cast his vote for ratification after Virginia and New Hampshire’s conventions which made the new constitution a national reality.[14]

Of the five maritime issues in the Constitution the first, and most obvious, was the navy clause. The lone sentence gave Congress the power to “provide and maintain a navy.” Naturally, one harks back to the Articles of Confederation and the required unanimity among confederation congressmen to provision a navy. The clause cannot be taken out of context from its preceding clause: the militia clause. The militia clause limited appropriations to ground forces for two years. No such limitation was placed on the navies unless one considers a navy to fall under the broad category of “armies” in the Constitution. There is little lexical basis for this judgment.[15] There was also a much greater aversion to standing armies in the Americas. This stemmed from their experiences with Great Britain. The Magna Carta (1215) and the English Bill of Rights (1689) gave the power to declare war to the King but took from him the power of the purse.[16] Navies can also be seen as primarily defensive, rather than offensive or imperial, forces. A strong, defensive navy could eliminate much of the need for ground forces. Other than minor debates over the extent of the term “armies” (see note 15), the interpretation of this clause is fairly straightforward.

In Article II, enumerating the President’s powers, the Navy is placed under the command of the President. The surviving records of the Constitutional Convention seem clear that the framers wanted a single navy under the command of the President.[17] Although the clause “No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” appears in Article I, it is linked to the President’s command in Article II. This was an attempt to remove from individual states the right to use their state navies, small as they were, for anything other than defense. This did not prohibit states from employing private vessels in defense but forbade them the use of their own warships without the consent of Congress. The states with larger navies had no compunctions against using their own vessels against other states. Virginia provides some of the starkest examples of interstate naval warfare before the Constitution. The clause was underscored in the original Committee of Detail draft, perhaps emphasizing its importance.[18]

Article I also granted Congress the right to issue letters of marque and reprisal, a practice that subsequently fell largely out of favor, not formally used after the War of 1812. Technically speaking, reprisal refers to the actual “taking” while a letter of marque allowed the crossing into another jurisdiction to make said reprisal.[19] Hired privateers carried out reprisals and frequently augmented naval forces before the American Revolution and during the early republic. Letters of marque and reprisal debuted as a useful tool of statecraft in the Peace of Westphalia in 1648, a series of treaties ending Europe’s religious wars. However, the concept had its origins centuries early in Middle Ages England. Article I’s letters of marque and reprisal shares a common origin with another aspect of maritime law in the new Constitution: the federal court’s jurisdiction over maritime law and cases of admiralty.

The original language of the war making clause had shifted from a right to “make” war to the ability to “declare” it. This prevented Congress from meddling in the execution of the war while also preventing the President from being able to make the decision to single-handedly declare it. There was apparent unanimity among federalists and anti-federalists over letters of marque and reprisal. No debates on the topic have survived in the Convention notes. Elbridge Gerry, whose legacy is regrettably confined in the present to the eponymous gerrymandering, made the lone recorded mention of letters of marque, giving them his endorsement. The right had been included in his native Massachusetts, which had a formidable number of privateers in addition to their navy, for over a decade.[20] Privateering had been an extremely profitable business throughout the Revolution (see note 5). Privateers were motivated primarily for profit although the framers saw the potential for offensive military goals to be met through them. Governments even tried to induce privateers to attempt more war-like actions, but courage, even motivated by money, did not make them expert sea warriors.[21] Nevertheless, by the end of the war, privateers had captured 3,087 ships compared to the Continental Navy’s 200.[22] While this would seem to evince the usefulness of privateering, it was a burden to army recruitment and an inducement to desertion that raised the ire of Benjamin Franklin and Robert Morris.[23]

There was disagreement over the original constitutional intent of letters of marque and reprisal. Joseph Story, who contributed much to the early interpretations of the admiralty clause, believed letters of marque were included as war powers and that its separate mention was a redundancy. It did not necessarily grant Congress full domain over all armed conflict, although hypothetically Congress could override a presidential veto of a war declaration and issue a letter of marque themselves. Others concluded that the clause represents the placement of all military conflicts, including those short of war, under the cognizance of Congress.[24] That debate merits greater attention but cannot be fully done justice here. The last letters of marque occurred during the War of 1812 although these efforts largely failed as a result of Britain’s effective blockade of American coasts.

Naturally, privateering as a largely unregulated business venture brought certain legalities into question. The first major federal prize case was Penhallow v. Doane which established that the new Supreme Court could uphold decrees made under courts of admiralty during the Articles of Confederation. Other significant prize cases were adjudicated during the Quasi-War. A later case which solidified privateering’s relevance in international law was Murray v. Schooner Charming Betsey which maintained that privateering, even as a matter of armed conflict, could not violate the law of nations or neutrality.[25] As a result, unauthorized captures, which had become an anathema during the Revolution, were tortious and could be tried as piracy.[26]

Unsurprisingly, the framers took their cues about maritime legal jurisdiction from the British who had their own courts of admiralty. The surviving records of the Constitutional Convention are remarkably silent on the point of admiralty jurisdiction. Understandably, there were more pressing issues of representation that threatened to fracture the Convention. However, both the maligned Virginia Plan and the New Jersey Plan offered some method for adjudication of legal cases on the seas and piracy. During the colonial period the British carved out districts for its own admiralty courts in North America. However, during the war, these had splintered into state-level courts often at odds with one another over cases that did not occur within its terrestrial borders.[27] The confusion stemmed from which courts in each state had jurisdiction, in which state captured property had been purchased, in which state the vessel had been constructed, and whether the vessel had been under the control of the federal government.[28] The Articles of Confederation carved out courts of final appeal for piracy and high seas felonies. This did not permit any interference in state courts. This morass of conflicting rulings prefaced the final decisions made at the Constitutional Convention in 1787. The final text in the Committee of Detail, likely the work of South Carolina’s John Rutledge, was added without any apparent controversy. There would be a federal judicial purview for cases involving prizes and captures, piracy, and other maritime matters.[29] While the record may be vague on the origins and intent of the clause, its later expositors were not.

John Jay, the United States’ first Chief Justice, wrote in his seriatim opinion in Chisholm v. Georgia in 1793, that as the seas are the joint property of nations, whose right and privileges relative thereto are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction.”[30] Joseph Story’s tenure on the Supreme Court from 1811 to 1845 dealt with a number of cases on judicial cognizance. Story was more ideologically aligned with Chief Justice John Marshall on matters of judicial power and scope. In a district case in his circuit in Massachusetts, Story defined and expanded, the clause’s scope. Story drew on the history of English admiralty courts and how the framers would have understood the clause. Unlike many other aspects of their English experience, the admiralty clause was imported from English tradition and was not meant in any way to change or restrict the admiralty court model they had in the colonies. This saved the clause from narrow interpretation by parties interested in circumventing federal cognizance. The clause would apply to all legal matters on the seas and not simply off the nation’s coasts.[31]

While the Navy was not established for over a decade after the Constitutional Convention, it was clear that the framers wanted with near unanimity a structure in place for the nascent maritime force. This represented not only the desire to be a major player in the increasingly militarized oceanic space but also an unusual form of consolidation of the power to operate at the national level. While the Constitution did not ban state navies outright, it stripped from the states many of the rights they had had in matters of maritime warfare, privateering, and adjudication of prize cases. While the states retained tremendous sovereignty in many matters, independent action in foreign affairs was not one of them. This seems obvious enough with the placement of treaty-making powers and diplomacy in the legislative and executive branches. However, the nascent navy would not be contingent on state-level readiness. It would occasionally rely on avaricious privateers for decades into the early republic, but never again would the United States Navy be a hodge-podge of multiple actors. As John Jay stated, the law of nations governed the water and the United States, at least in this realm, would be a unified nation among nations.

Special thanks to Nikki Thome and the staff of the Naval Medical Center San Diego Library.

[1]Marshall Smelser, The Congress Founds the Navy: 1787-1798 (Notre Dame: University of Notre Dame Press, 1959), 1-22.

[2]The captures clause (Art. 1 Sec. 8 Cl. 11) is tied to letters of marque and reprisal and admiralty courts and will not be treated separately here although it merits deeper consideration. Also, the Fifth Amendment removes protections against self-incrimination for cases involving ground and naval forces in wartime. See note 13.

[3]Primary and secondary source material on state level ratification debates have greater variability. There were only ten notetakers at the federal convention.

[4]This astute and meritorious observation was made by Sarah Vlasity. See Sarah Vlasity, “Privateers as Diplomatic Agents of the American Revolution, 1776-1778,” undergraduate thesis, University of Colorado-Boulder, 2011.

[5]For a short biography of John Langdon see Mel Bradford, Founding Fathers (Lawrence: University Press of Kansas, 1982), 1-4. The only lengthy biography of Langdon is Lawrence Shaw Mayo, John Langdon of New Hampshire (Port Washington: Kennikat Press, 1970). Collections of Langdon’s correspondence include Alfred Langdon Elwyn, Letters by Washington, Adams, Jefferson, and Others, Written During and After the Revolution, to John Langdon, New Hampshire (Philadelphia: Press of H.B. Ashmead, 1880) and William Bell Clark, ed., Naval Documents of the American Revolution, Vols I-XII (Washington D.C.: U.S. Department of Navy, 1964). For the New Hampshire ratification convention see Jonathan Elliot ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. II (Philadelphia: J.B. Lippincott and Company, 1859). Elliot’s record on New Hampshire is incomplete. See also Nancy Elaine Briggs Oliver, “Keystone of the Federal Arch: New Hampshire’s Ratification of the United States Constitution,” Ph.D. dissertation, University of California, Santa Barbara, 1972 and Nathaniel Joseph Eiseman, “The Ratification of the Federal Constitution by the State of New Hampshire,” master’s thesis, Columbia University, 1937.

[6]Eiseman, “Ratification of the Federal Constitution,” 92-4. Both John Langdon and Massachusetts’ Nathaniel Gorham owned vessels and profited from wartime privateering, see below section on Letters of Marque and Reprisal. See Forrest McDonald, We the People: The Economic Origins of the Constitution (New Brunswick: Transaction Publishers, 1992), 38-43.

[7]Capitalization of navy in this essay will depend on whether one is writing about “a” navy or “the” Navy. A state navy is not capitalized. I have similarly split the word “constitution.”

[8]George Washington, “Sentiments on a Peace Establishment,” in John C. Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources, 1754-1799 (Washington D.C., 1931-44), 26:374-98.

[9]Articles of Confederation, Art IX, Sec. 5.

[10]“The Utility of the Union in Respect to Commercial Relations and a Navy,” The Federalist Papers, November 1787, www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-11.

[11]Charles Oscar Paullin, “The Navy of the American Revolution,” Ph.D. dissertation, University of Chicago, 1906, 315-54.

[12]Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: Signet, 1986), 209.

[13]It is worth pausing to consider the frequently forgotten legal parlance and tradition that the framers would have associated with a “convention.” Conventions were broadly categorized and delegates were given commissions the bounds of which they were obliged to respect. Lansing and Yates were not incorrect in their assessment of New York’s commission to Philadelphia as were their Anti-Federalist peers in Maryland, Luther Martin and John Francis Mercer. Massachusetts was unique in the broad latitude its commission afforded its delegates (“render the federal Constitution adequate to the exigencies of government and the preservation of the Union”). For a thorough and estimable review of this topic see Robert Natelson, “Founding-Era Conventions and the Meaning of the Constitution’s ‘Convention for Proposing Amendments,’” Florida Law Review 65, no. 3 (May 2013), 615-712.

[14]Jonathan Elliot, ed., The Debates of the Several State Conventions on the Adoption of the Federal Constitution (Washington D.C., Self-publication, 1836), 2:381.

[15]Reed Akhil Amar implies otherwise but recapitulates the Founders’ notions of a defensive navy perhaps abrogating the need for a large standing army and its purpose in helping ensure safe sea-going commerce. Amar astutely points out that the Fifth Amendment also mentioned a hypothetical navy. The Fifth Amendment protections against self-incrimination would not applyto cases involving the navy or militia in a time of war. See Reed Akhil Amar, America’s Constitution: A Biography (New York: Random House, 2005), 46-50, 330.

[16]Xingping Zhu, “The Armies and Navy Clauses: An Analysis of Two “Forgotten” Clauses and Their Implications for Defense Appropriations,” submission to Columbia Law Review (May 26, 2011), 1-4.

[17]Max Farrand ed., The Records of the Federal Convention (New Haven: Yale University Press, 1911): 2:135, 2:158, 3:111, 2:143-5, 2:182, 2:187, 2:323-30, and 2:656.

[18]Ibid., 2:169. Also mentioned in Paullin’s dissertation.

[19]Bryan Garner, ed., Black’s Law Dictionary, 10th Edition (Eagan, MN: Thomson West, 2014).

[20]This was the Massachusetts Armed Vessels Act of 1775. See C. Kevin Marshall, “Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars,” The University of Chicago Law Review 64, no. 3 (1997), 960.

[21]Marshall, “Putting Privateers in their Place,” 959-69. William Young, “A Check on Faint-Hearted Presidents: Letters of Marque and Reprisal,” Washington and Lee Law Review 66 (2009), 904.

[22]Young, “A Check on Faint Hearted Presidents,” 902.

[23]Marshall, “Putting Privateers in their Place,” 966. Robert Morris and Silas Deane were particularly pessimistic about the fate of the new nation if a maritime force was not established. He was acutely aware of all European commercial interests on the continent, not just French, Dutch, and English. This was evinced from a 1781 letter from Deane to Morris. See E. James Ferguson, ed., The Papers of Robert Morris Vol. I (Pittsburgh: University of Pittsburgh Press, 1973), 128-41.

[24]Young, “A Check on Faint Hearted Presidents,” 899-907. See also Jules Lobel, “Little Wars and the Constitution,” University of Miami Law 50 (1995), 66.

[25]The originality of this doctrine is difficult to discern. Vattel makes no specific mention of it. See note 30.

[26]Theodore Cooperstein, “Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering.” J. Mar. L. & Com 40 (2009), 16-33.

[27]Harrington Putnam, “How the Federal Courts were Given Admiralty Jurisdiction,” Cornell Law Review 10, no. 4 (June 1925), 461-3.

[28]Putnam, “Admiralty Jurisdiction, 463.

[29]The late great Charles Lund Black, Jr. observed that the word “maritime” appears to have been added later since none of the original drafts or plans for the new government used the word. This not only clearly took any inferred jurisdiction away from other courts but also spread the judicial purview to business as well as military interests. See Charles L. Black Jr., “Admiralty Jurisdiction; Critique and Suggestions,” Columbia Law Review 50, no. 3 (March 1950), 261-2. One of Black’s most seminal works, not perused for this essay, was 1100 page The Law of Admiralty which he co-authored with Grant Gilmore in 1957.

[30]2 U.S. (2 Dall.) 419. This was a common notion but has some grounding in Swiss political philosopher Emer de Vattel’s Law of Nations with which many of the Founders were familiar. Charles Pinckney cited the text even as late as 1820 during the House debates on the Missouri Compromise. The “open” seas were the possession of no nation unless such rights were given up by treaty. Coastal waterways and seas entirely encapsulated by a nation were a different matter. Vattel’s idea followed on those of Dutch jurist Hugo Grotius in Mare Liberum (The Freedom of the Seas) in 1609. The Portuguese and Spanish had claimed Mare clausum (Closed sea) at various times in parts (or the whole) of the Atlantic and Pacific. See Emer de Vattel, The Law of Nations, ed. Knud Haakonssen (Indianapolis: Liberty Fund 2008), 250-60. There have been several English translations of Hugo Grotius over the centuries. Robert Feenstra and Jeroen Vervilet produced a recent bilingual translation in 2009 through Marinus Nijhoff Publishers in Leiden.

[31]The case Delovio v. Boit (7 F. Cas. 418 (C.C.D. Mass. 1815)was adjudicated at the Massachusetts District Court where Story rode the circuit while on the federal bench. Story’s redrawing of the clause’s boundaries prevented any exemption or immunity for involved parties.