Constitutional law and pirates
08/01/19 05:28
Americans have a history of skepticism about titles. Recently I was working on a funeral bulletin with a grieving widow and we had a discussion over the use of the title “The Honorable” which is given to judges. The same title is sometimes granted to mayors, governors and members of legislatures. The person whose funeral we were planning had been an attorney and had left specific instructions regarding his funeral. In his list of pall bearers, he had used the title “The Honorable” to refer to the judge. However, since we were unsure about the propriety of making a distinction in title between the pall bearers, I suggested that we ask the person himself about the use of the title. He quickly asked us not to use the title in the funeral bulletin, but to use no titles at all for the pall bearers. That is what we did.
The discussion goes back much farther in our history than this generation. The framers of the United States Constitution wrote a provision into the body of the document. Article 1, Section 9, Clause 8 of the United States Constitution states “No title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
The framers of the Constitution wanted to prevent a society of nobility from being established in the United States. They also wanted to protect our government from being influenced by other governments.
So we don’t have knights or dukes or earls or princesses or Queens or Kings or other titles of nobility in our country. The nobility clause in the Constitution is unique in the fact of being a negative clause. It restricts the passage of legislation for a particular purpose. The anti-federalists argued against such a clause, reminding others that the Constitution granted powers to the government, not restrained them. “Why is it necessary to restrain congress from doing what it has no power to do?” they argued. But titles of nobility were of serious importance to the American Revolutionaries and the Framers of the Constitution. They believed that titles clouded people’s judgment.
There was an attempt to amend the constitution placing further barriers on titles. In 1810 an amendment was introduced that, if adopted, would strip citizenship from any person who accepted , claimed, received or retained any title of nobility from a foreign government. This amendment was not ratified by the required number of states, but had no expiration date adopted by congress, so still technically could be adopted if an additional 26 states ratified the amendment.
I know that my readers don’t check my journal for dry tirades on Constitutional Law, but I learned about the nobility clause of the constitution from my reading about pirates and in general, pirates are far more interesting than constitutional law, even though the person whose funeral we recently celebrated would probably argue with me about that suggestion. He loved constitutional law.
The timing of the proposed amendment to the Constitution just prior to the outbreak of the War of 1812 lines up with the technical distinction between pirates and privateers. A pirate is someone who engages in thievery on the high seas for the purpose of personal profit. A privateer is someone who is engaged by a government to take military action upon the high seas for the purposes of defense in times of war. In the early days of the colonies, funding for ships and a formal navy was not available. Therefore private individuals and companies were hired to use ships to disrupt commerce and prevent supplies from being delivered to foreign troops with whom the government was at war. This practice was employed not only by the American Colonies. Britain also used privateers in its battles against Spain, France and other European powers. Privateers were considered to be pirates by their victims, but celebrated as heroes in the countries form which they received their commissions to engage in privateering. Privateers generally paid for their commissions and frequently shared the gains from their actions with the governors who granted such commissions. In the time leading up to the War of 1812, the possibilities for piracy and privateering in the Caribbean wee becoming less and less lucrative due to the heavily guarded warships Spain was using to transport wealth from Central and South America. The pirates and privateers were turning to the other side of the globe where trade between India and the Muslim countries of the Mideast was more easily and more profitably disrupted. The privateers obtained commissions from US mayors and governors and returned to ports in those cities or states without fear of being arrested for their piracy, often paying large sums of money for the privilege.
New York governor Benjamin Fletrcher was particularly quick to personally profit from the sale of commissions and any emoluments that came his way when the pirates returned after a successful voyage. Despite the nobility clause of the constitution, which is also known as the emoluments clause, the governor became very wealthy from his support of pirates. Fletcher’s actions weren’t isolated. There were other governors and mayors who issued commissions for privateers. Some backed less successful pirates, who lost battles at sea and never returned or returned without the wealth of the successful pirates.
In contemporary times, the clause has been brought up in several cases pertaining to the treatment of presents from foreign states given to the President of the United States. The tradition has ben for the President to seek permission from congress to keep any gifts. The clause has made repeated headlines during the current presidential administration over the acceptance of trademarks and funds funneled through businesses such as hotels that provide direct benefit to the President without consent of congress. It will take years for these charges and their defenses to be argued in the courts and it appears that such debates will range for many years to come.
In the meantime, it is pretty clear that for the most part US governors and mayors have stopped accepting cash for issuing commissions to pirates and it doesn’t appear that any of us are in line for knighthood anytime soon.
The discussion goes back much farther in our history than this generation. The framers of the United States Constitution wrote a provision into the body of the document. Article 1, Section 9, Clause 8 of the United States Constitution states “No title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
The framers of the Constitution wanted to prevent a society of nobility from being established in the United States. They also wanted to protect our government from being influenced by other governments.
So we don’t have knights or dukes or earls or princesses or Queens or Kings or other titles of nobility in our country. The nobility clause in the Constitution is unique in the fact of being a negative clause. It restricts the passage of legislation for a particular purpose. The anti-federalists argued against such a clause, reminding others that the Constitution granted powers to the government, not restrained them. “Why is it necessary to restrain congress from doing what it has no power to do?” they argued. But titles of nobility were of serious importance to the American Revolutionaries and the Framers of the Constitution. They believed that titles clouded people’s judgment.
There was an attempt to amend the constitution placing further barriers on titles. In 1810 an amendment was introduced that, if adopted, would strip citizenship from any person who accepted , claimed, received or retained any title of nobility from a foreign government. This amendment was not ratified by the required number of states, but had no expiration date adopted by congress, so still technically could be adopted if an additional 26 states ratified the amendment.
I know that my readers don’t check my journal for dry tirades on Constitutional Law, but I learned about the nobility clause of the constitution from my reading about pirates and in general, pirates are far more interesting than constitutional law, even though the person whose funeral we recently celebrated would probably argue with me about that suggestion. He loved constitutional law.
The timing of the proposed amendment to the Constitution just prior to the outbreak of the War of 1812 lines up with the technical distinction between pirates and privateers. A pirate is someone who engages in thievery on the high seas for the purpose of personal profit. A privateer is someone who is engaged by a government to take military action upon the high seas for the purposes of defense in times of war. In the early days of the colonies, funding for ships and a formal navy was not available. Therefore private individuals and companies were hired to use ships to disrupt commerce and prevent supplies from being delivered to foreign troops with whom the government was at war. This practice was employed not only by the American Colonies. Britain also used privateers in its battles against Spain, France and other European powers. Privateers were considered to be pirates by their victims, but celebrated as heroes in the countries form which they received their commissions to engage in privateering. Privateers generally paid for their commissions and frequently shared the gains from their actions with the governors who granted such commissions. In the time leading up to the War of 1812, the possibilities for piracy and privateering in the Caribbean wee becoming less and less lucrative due to the heavily guarded warships Spain was using to transport wealth from Central and South America. The pirates and privateers were turning to the other side of the globe where trade between India and the Muslim countries of the Mideast was more easily and more profitably disrupted. The privateers obtained commissions from US mayors and governors and returned to ports in those cities or states without fear of being arrested for their piracy, often paying large sums of money for the privilege.
New York governor Benjamin Fletrcher was particularly quick to personally profit from the sale of commissions and any emoluments that came his way when the pirates returned after a successful voyage. Despite the nobility clause of the constitution, which is also known as the emoluments clause, the governor became very wealthy from his support of pirates. Fletcher’s actions weren’t isolated. There were other governors and mayors who issued commissions for privateers. Some backed less successful pirates, who lost battles at sea and never returned or returned without the wealth of the successful pirates.
In contemporary times, the clause has been brought up in several cases pertaining to the treatment of presents from foreign states given to the President of the United States. The tradition has ben for the President to seek permission from congress to keep any gifts. The clause has made repeated headlines during the current presidential administration over the acceptance of trademarks and funds funneled through businesses such as hotels that provide direct benefit to the President without consent of congress. It will take years for these charges and their defenses to be argued in the courts and it appears that such debates will range for many years to come.
In the meantime, it is pretty clear that for the most part US governors and mayors have stopped accepting cash for issuing commissions to pirates and it doesn’t appear that any of us are in line for knighthood anytime soon.