Understanding the theories of the Founding Fathers is one attempt to reveal their
intentions on the war-making power of the President. Another possibly even more
revealing method is to examine the actions of the Framers, or at least the
actions of their contemporaries. Jefferson
used his powers as commander-in-chief to deploy forces in a precarious position
and eventually into war without first consulting Congress. This episode, of
course, occurred with the Barbary Pirates, a situation which we will examine
more closely now.
The Barbary Pirates were from the northern part of Africa
in the Mediterranean. For centuries, they had
controlled the shipping trade in the Mediterranean.
Their interest was not as much in the cargo of the ships as it was in the crews
that manned the ships. The pirates would capture and then enslave the crews of
the vessels that sailed in the Mediterranean,
forcing the men to labor in workhouses as well as subject them to starvation.
The only way to escape this fate was for a country to pay tribute to each of
the Barbary states,
and this was not always a guarantee. Paying tribute, however, was a common
practice for all the European nations. In fact, when the United States were
still colonies, the English had paid dues to protect their ships, as well as
those of the American colonies. Now that the colonies had won their
independence, England
and the other powers of Europe had no interest
in protecting the trade of the new nation. The attitude of Europe
was that as long as the pirates had the smaller countries of the world to raid,
there was no need for the pirates to impede the travels and trade of the larger
countries in Europe. This, however, did not
save them from paying tribute, which they continued to pay year after year. It
did, however, reduce the inconvenience of further attacks. In fact, some
countries paid tributes in the millions every year.
Long before Jefferson had ever been elected
President, he abhorred the idea of paying homage to the Barbary states. On many occasions he had
petitioned Congress and President Adams to take military action against the Barbary powers, each time to no avail. Eventually, as an
envoy to France Jefferson abdicated his position on the Barbary Pirates and
gave in to the pressure of Congress. In 1786 Jefferson
sent Thomas Barclay, the Consul General, to purchase peace with Morocco.
Barclay was success successful in negotiating a treaty that gave the United States
protection and most favored nation status. This was at a price of $30,000 a
year, as well as some gold and jeweled trinkets. Jefferson,
of course, was not happy with the treaty because he felt that it still did not
offer any guarantees that American shipping would be spared capture and
slavery. He believed, basing his opinion on the successful strike by France against Algiers, that war was the
only way to guarantee freedom of trade in the Mediterranean.
He also relayed to President Adams as well as Congress that he felt going to
war would only guarantee peace, but would also offer an excellent opportunity
to train the nation's naval forces. Adams and Congress disagreed, and the
debate continued until Jefferson became
President.
After Jefferson became President, he felt
he finally had an opportunity to deal with the problem of piracy in the Mediterranean. The United States had just completed a
peace with Algiers,
and was in the process of completing an arrangement with the Bey of Tripoli.
The deliberations were proceeding unfavorably as the Bey of Tripoli believed
that Algiers
had received a far better deal an he. Tensions were strong in the Mediterranean, and Jefferson
felt sure that war would ensue. Congress and President Adams had failed to act
judiciously to solve the problem of the pirates. Adams
had succeeded in keeping the United
States out of an anti-piracy confederacy
with other American countries. Congress had also been slow to offer acceptable
amounts of money for tributes to the Barbary
states. In fact, Congress had authorized a mere
$80,000 for the appeasement of the Barbary
powers. This was only a fraction of what it would have cost the United States
to secure peace in the region. All of these previous efforts had failed, and
their failures were threatening a rather large part of the United States'
international trade: one sixth of American exports of wheat and flour went
through the Mediterranean, as well as one-fourth
of all pickled and dried fish.(18)
This was a considerable amount of trade for a developing country.
Jefferson wanted what he always had, war.
It appears that Jefferson, in dealing with the
Barbary pirates had decided that it would be
cheaper and more beneficial to fight a war than continually to pay homage.
President Jefferson had made his entire presidency one that stressed reduced
budgets and spending, and the discharge of the public debt. Continuing to pay
large ransoms and other gratuities would not achieve this goal; fighting a
short decisive war might. Jefferson saw this
as an opportunity to advance the goals of his administration, and decided,
therefore, to deploy the navy.
Jefferson undoubtedly was mindful of the
Constitution's limitations on the President's war powers. In general, Jefferson had favored a strict interpretation of the
Constitution, and he knew that as President he was limited to defensive
measures without having approval from Congress to act offensively against the
Pirates. He was bound by the "chains of the Constitution."
Surprisingly, however, these thoughts did not stop Jefferson
from dispatching Robert Dale to the Mediterranean,
with orders to find out if any or all of the Barbary
powers had declared war on the United
States. If only the Bey of Tripoli had
declared war, Dale was to blockade Tripoli's
port. If any other of the Barbary states had declared war, then Dale was to deploy
his troops as he saw fit in order to "protect our commerce and chastise
their insolence-by sinking, burning or destroying their ships and Vessels
wherever (he should) find them."(19)
This order by President Jefferson authorized actions that clearly were beyond
the line of "defensive" actions authorized by the Constitution.
When Dale arrived, only the Bey of Tripoli had declared war on the United States.
On the first day of August, the Enterprise,
one of Dale's ships, came across a Tripolitan ship. The Enterprise engaged the Tripolitan ship in
battle, and was victorious. The crew of the Enterprise then stripped the ship and sent it
back to port, not sinking it or taking prisoners. Dale's orders had, however,
authorized the taking of prisoners. The Enterprise
had not taken any only because it was on a mission for supplies, water
specifically, and could not afford to keep prisoners on board. This was a tactical
consideration.(20)
When Jefferson reported his and Dale's
actions to Congress, the returning of the Tripolitan vessel to its port
unharmed became a constitutional consideration. Jefferson
wrote:
Unauthorized by the Constitution, without the sanction of
Congress, to go beyond the line of defence, the vessel, being disabled from
committing hostilities, was liberated with its crew. The legislature will doubtless
consider whether, by authorizing measures of offence also, they will place our
force on equal footing with that of its adversaries.(21)
Congress did authorize the appropriate measures of allowing the navy and the
President to capture and make prizes of Tripolitan vessels. The authorization
led to a war effort the lasted for four years.
Most scholars point to Jefferson's address
to Congress as support for Congress' exclusive right to engage in hostilities.
This seems only partially true. Jefferson did
not want to "act in such a way that might compromise the power to declare
war assigned exclusively to Congress by the Constitiution "(22)
but at the same time he wanted to advance the goals of his administration, such
as reducing the national debt and the budget. Had Congress made this a
constitutional issue, Jefferson might have responded that his actions were
based on "a question of expediency," rather than on a technical
question of constitutionality; the nation had to react quickly to the Bey's
declaration of war and Congress was not in session at the time. His actions
were for the good of the nation and not to satisfy a personal fervor for power.
This would not make his actions constitutional, but it would make them
forgivable. Jefferson further hoped that his
actions would not be a signal for other Presidents to bypass the Constitution
and its provisions for war-making. He believed that the "good sense"
of the people would not allow this precedent to be one that would continue.(23)
That is he believed that if other presidents abused their power, the people
would pressure Congress for an impeachment. This is an argument that would
parallel his justification of the Louisiana Purchase.
In any case, Congress did not question President Jefferson's actions even
though he had essentially brought the nation into a state of war. His actions
went virtually unnoticed. The only objection of note came from Hamilton. Hamilton, however, did not criticize Jefferson for using force, but rather said that Jefferson did not use nearly enough force. Hamilton also insinuated
doubts about Jefferson's strict interpretation
of the war powers of the President. Hamilton
commented that Jefferson had the power to
retaliate because Congress' power to declare war was merely to be used to bring
the nation out of a non-war state into a state of war. Since Tripoli had already declared war, there was
no need for this act of Congress.
There are other possibly more important reasons that Congress did not
investigate Jefferson's orders to Dale.
Perhaps, as would be the attitude of Congress in dealing with similar actions
by Presidents in the early twentieth century, Congress did not see the Barbary pirates as that large a threat. The pirates were
more of a nuisance than anything else, and Jefferson's
initiative just gave Congress prompting to deal with the situation.
Public opinion supported Jefferson, as well as stated earlier the only real
dissenter on the war was Hamilton, and even he conceded that the President had
ever right to defend the nation from aggressors. Congress must have agreed that
the President's actions were within the scope of defense. Or maybe because of Jefferson's public show of respect for Congress, it
simply forgave his actions.
Probably, the most frightening and accurate reason for Congress' lack of
action is that Dale was successful. No American lives had been lost, and the
shipping lanes in the Mediterranean were freed
from harassment. Jefferson had dodged a bullet
with his apparent success.
No matter why Congress accepted Jefferson's
actions, a dangerous precedent had been set. Jefferson
had embroiled the nation in war without congressional assent. He had done it in
attempting to reduce the public debt and budget, a goal he felt was good for
the nation and for him, the ends justified the means. Congress had accepted his
actions for these reasons, as well as the fact that the Barbary states were no threat to the
continental United States.
Finally, because the effort was a success, there was no incentive to question
its constitutionality. This early action by a President set a historical
precedent for future Presidents. These justifications for Jefferson's
actions were not in line with the original intent of the Framers' concerning
the President's war powers; yet all of these factors would be seen again as
justifications for presidentially instigated wars in the twentieth century.