Friday, September 16, 2011
Letter of Marque and Reprisal
In the days of fighting sail, a Letter of Marque and Reprisal was a government licence authorizing a person (known as a privateer) to attack and capture enemy vessels, and bring them before admiralty courts for condemnation and sale. Cruising for prizes with a Letter of Marque was considered an honorable calling combining patriotism and profit, in contrast to unlicensed piracy which was universally reviled. The French used the term lettre de course for their letters of marque, giving rise to the term corsair. Letter of Marque can sometimes describe the vessel itself: a "Letter of Marque" generally refers to a lumbering square-rigged cargo carrier that might pick up a prize if the opportunity arose, whereas a "privateer" was a fast and weatherly fore-and-aft rigged vessel heavily armed and heavily crewed, intended exclusively for fighting.
A "letter of marque and reprisal" would involve permission to cross an international border to effect a reprisal (take some action against an attack or injury) authorized by an issuing jurisdiction to conduct reprisal operations outside its borders.
[hide] 1 Etymology 1.1 Nomenclature history
2 Early history
3 Applying for, and legal effect of, letter of marque
4 Adjudicating captures, invalid letter of marque, or illegal cruelty
5 Abolition of privateering
6 21st-century American reconsideration of Letters of Marque
7 See also
Old English mearc, from Germanic *mark- ‘boundary; boundary marker’, from Proto-Indo-European *merǵ- ‘boundary, border’.
French, from Provençal marca, from marcar ‘seize as a pledge‘
 Nomenclature history
According to the Oxford English Dictionary, 2nd ed. (Clarendon Press, 1989) ( def. 1 of "marque" & def. 2a of "marque" defining "letter of marque"), the first recorded use of "letters of marque and reprisal" was in an English statute in 1354 during the reign of Edward III. The phrase referred to "a licen[s]e granted by a sovereign to a subject, authorizing him to make reprisals on the subjects of a hostile state for injuries alleged to have been done to him by the enemy's army."
 Early history
Drake viewing treasure taken from a Spanish ship, print courtesy New York Public Library www.nypl.org
During the Middle Ages armed private vessels enjoying their sovereign's tacit consent, if not always an explicit formal commission, regularly raided shipping of other nations, as in the case of Francis Drake's attacks on Spanish shipping of which Elizabeth I (despite protestations of innocence) took a share. Grotius's 1604 seminal work on international law called De Iure Praedae (Of The law of Prize and Booty) was an advocate's brief defending Dutch raids on Spanish and Portuguese shipping.
King Henry III of England first issued what later became known as privateering commissions in 1243. These early licences were granted to specific individuals to seize the king’s enemies at sea in return for splitting the proceeds between the privateers and the crown.
The letter of marque and reprisal first arose in 1295, 50 years after wartime privateer licenses were first issued. According to Grotis, letters of marque and reprisal were akin to a "private war", a concept alien to modern sensibilities but perhaps understandable if one recalls a more muscular and self-reliant age when the ocean was lawless and all merchant vessels sailed armed for self defense. A reprisal involved seeking the sovereign's permission to exact private retribution against some foreign prince or subject. The earliest instance of a licensed reprisal recorded in England was in the year 1295 under the reign of Edward I. The notion of reprisal, and behind it that just war involved avenging a wrong, clung to the letter of marque until 1620 in England, where to apply for one a shipowner had to submit to the Admiralty Court an estimate of actual losses.
Licensing privateers during wartime became widespread by the 16th Century Europe, when most countries began to enact laws regulating the granting of letters of marque and reprisal.
Although privateering commissions and letters of marque were originally distinct legal concepts, distinctions became purely technical by the eighteenth century. The United States Constitution granted Congress the power to issue “Letters of marque and reprisal” without separately addressing privateer commissions.
During the Napoleonic Wars and the War of 1812, it was common to distinguish verbally between privateers (also known as private ships of war) on the one hand, and armed merchantmen, which were referred to as "letters of marque", on the other, though both received the same commission. The Sir John Sherbrooke (Halifax) was a privateer; the Sir John Sherbrooke (Saint John) was an armed merchantman. The East India Company arranged for letters of marque for its East Indiamen such as the Lord Nelson, not so that they could carry cannons to fend off warships, privateers and pirates on their voyages to India and China, that they could do without permission, but so that should they have the opportunity to take a prize they could do so without being guilty of piracy. Similarly, the Earl of Mornington, an East India Company packet ship of only six guns too carried a letter of marque.
In July 1793, the East Indiamen Royal Charlotte, Triton, and Warley participated in the capture of Pondicherry by maintaining a blockade of the port. Afterwards, as they were on their way to China, the same three East Indiamen participated in an action in the Straits of Malacca. They came upon a French frigate, with some six or seven of her prizes, replenishing her water casks ashore. The three British vessels immediately gave chase. The frigate fled towards the Sunda Strait. The Indiamen were able to catch up with a number of the prizes, and after a few cannon shots, were able to retake them. Had they not carried letters of marque, such behavior might well have qualified as piracy. Similarly, on 10 November 1800 the East Indiaman Phoenix captured the French privateer General Malartic, an action made legal by a letter of marque.
 Applying for, and legal effect of, letter of marque
The body of Captain William Kidd hanging in a gibbet over the Thames, the result of confusion over whether Captain Kidd took prizes legally under a Letter of Marque, or illegally as a pirate.
The procedure for issuing Letters of Marque and the issuing authority varied by time and circumstance. In Colonial America for instance, colonial governors issued them in the name of the King. During the American Revolution first the state legislatures, then both the states and the Continental Congress, then after ratification of the Constitution, Congress authorized and the President signed Letters of Marque. A ship owner would send in an application stating the name, description, tonnage and force (armaments) of the vessel, the name and residence of the owner, the intended number of crew, and tendered a bond promising strict observance of the country's laws and treaties, and of international laws and customs. The commission was granted to the vessel, not to its captain, often for a limited time or specified area, and stated the enemy upon whom attacks were permitted. For instance during the Second Barbary War President James Madison authorized the Salem, Mass. brig Grand Turk to cruise against "Algerine vessels, public or private, goods and effects, of or belonging to the Dey of Algiers". (Interestingly, this particular commission was never put to use as it was issued the same day the treaty was signed ending the U.S. involvement in the war—July 3, 1815.)
A Letter of Marque and Reprisal in effect converted a private merchant vessel into a naval auxiliary. A commissioned privateer enjoyed the protection of the laws of war. If captured, the crew was entitled to honorable treatment as prisoners of war, while without the license they were deemed mere pirates "at war with all the world," criminals who were properly hanged.
For this reason enterprising maritime raiders commonly took advantage of "flag of convenience" Letters of Marque, shopping for cooperative governments to license and legitimize their depredations. French/Irishman Luke Ryan and his lieutenants in just over two years commanded six vessels under the flags of three different nations and on opposite sides in the same war. Likewise the notorious Lafitte brothers in New Orleans cruised under letters of marque secured by bribery from corrupt officials of tenuous Central American governments, or the briefly sovereign nation of Texas, to cloak plunder with a thin veil of legality.
 Adjudicating captures, invalid letter of marque, or illegal cruelty
The Letter of Marque by its terms required privateers to bring captured vessels and their cargoes before admiralty courts of their own or allied countries for condemnation. Applying the rules and customs of prize law the courts decided whether the Letter of Marque was valid and current, and whether the captured vessel or its cargo in fact belonged to the enemy (not always easy when flying false flags was common practice), and if so the prize and its cargo were "condemned", to be sold at auction with the proceeds divided among the privateer's owner and crew. A prize court's formal condemnation was required to transfer title; otherwise the vessel's previous owners might well reclaim her on her next voyage, and seek damages for the confiscated cargo.
Often questions arose as to the legitimacy of the Letter of Marque in the case of divided sovereignty during civil wars. An English court, for instance, refused to recognize the Letters of Marque issued by rebellious Ireland under James II, and hanged eight privateer captains as pirates. Seventy-nine years later during the American Civil War, the Union charged officers and crew of the Confederate privateer Savannah with piracy, calling their Letter of Marque invalid since the Union refused to acknowledge the breakaway Confederacy as a sovereign nation. The case resulted in a hung jury, and after Confederate President Jefferson Davis threatened to retaliate by hanging one Union officer for each executed Confederate privateer, the Union relented and thereafter treated Confederate privateersmen honorably as prisoners of war.
Privateers were also required by the terms of their Letters of Marque to obey the laws of war, honor treaty obligations (avoid attacking neutrals) and in particular to treat captives as courteously and kindly as they safely could. If they failed to live up to their obligations the Admiralty Courts could and did revoke the Letter of Marque, refuse to award prize money, forfeit bonds, even award tort (personal injury) damages as against the privateer's officers and crew.
 Abolition of privateering
Nations often by treaty agreed to forego privateering, as England and France repeatedly did starting with the diplomatic overtures of Edward III in 1324; privateering nonetheless recurred in every war between them for the next 500 years. Benjamin Franklin in 1792 attempted to persuade the French to lead by example and stop issuing Letters of Marque to their corsairs, but the effort floundered when war loomed with Britain once again. Finally after the Congress of Paris at the end of the Crimean War, seven European nations signed the Paris Declaration of 1856 renouncing privateering, and forty-five more eventually joined them, which in effect abolished privateering worldwide. The United States was not a signatory to that declaration. Despite the attempt to end privateering around the world, nations still continued issuing letters of marque. In 1879 at the beginning of the War of the Pacific, Bolivia issued letters of marque to any vessels willing to fight for them. At the time Bolivia had no navy and was under threat from Chile's fleet.
 21st-century American reconsideration of Letters of Marque
Article 1 of the United States Constitution lists issuing letters of marque and reprisal in Section 8 as one of the enumerated powers of Congress, alongside the power of taxation and the ability to "declare War." However, since the American Civil War, the United States has consistently agreed to be bound by the terms of the 1856 Paris Declaration forbidding the practice, and the ban is today considered part of the customary laws of war. Although technically permitted under the US constitution, issuing a valid letter of marque is a war crime under both US and international law.
However, in 2011 a ceremonial letter of marque was issued to the Rhode Island Pirate Players by the Rhode Island Governor Lincoln Chafee. The status of submarine-hunting Goodyear airships in the early days of World War II has created significant confusion. Although various accounts refer to airships Resolute and Volunteer as operating under a "privateer status", Congress never authorized a commission, nor did the President sign one.
The issue of marque and reprisal was raised before Congress after the September 11 attacks and again on July 21, 2007, by Congressman Ron Paul. The attacks were defined as acts of "air piracy" and the Marque and Reprisal Act of 2001 was introduced, which would have granted the president the authority to use letters of marque and reprisal against the specific terrorists, instead of warring against a foreign state. The terrorists were compared to pirates in that they are difficult to fight by traditional military means. Congressman Paul also advocated the use of letters of marque to address the issue of Somali pirates operating in the Gulf of Aden on April 15, 2009. However, the bills Congressman Paul introduced were not enacted into law.
 See also
Ambroise Louis Garneray
1.^ Upton's Maritime Warfare and Prize pp 170-171; 176 (discussing the history of Letters of Marque and Reprisal. Upton is considered the foremost 19th Century American scholar on prize law, though his mid-Civil War treatise is one-sidely pro-Union).[says who?]
2.^ Donald Petrie, The Prize Game p. 4 (noting cumbrous square-rigged cargo carriers often secured Letters of Marque just in case-- "[c]onfusingly, such vessels were themselves called "letters of marque'): see also Geoffrey Footner, Tidewater Triumph pp ? (discussing difference between letter of marque vessels and privateers)
3.^ from the Digital Gallery, New York Public Library (Drake/treasure)
4.^ Lord Russell, The French Corsairs p. 10(discussing history of private plundering ventures).
5.^ Grotius, De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty)pp 216-182 (Carnegie endowment translation of Grotius's Commentaries; the 12th Chapter later became the famous Mare Liberum (Freedom of the Seas)).
6.^ Francis R. Stark, The Abolition of Privateering and the Declaration of Paris , in Studies in History, Economics and Public Law 221, 270–71 (Faculty of Political Sci. of Columbia Univ. eds., Columbia Univ. 1897).
7.^ Stark at 272
8.^ Grotius, De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty) pp 62 (stating "the power to wage war privately resides in the individual, and the power to wage war publicly resides in the state").
9.^ Eastman, Famous Privateers of New England p. 1 (citing Edward I 1295 reprisal commission).
10.^ Lord Russell, The French Corsairs p. 12(discussing early practice in England).
11.^ Eastman, Famous Privateers of New England p. 1 (recounting early letters of marque issued in contest between Spain and her revolted Low Countries in 1569).
12.^ Lord Russell, The French Corsairs p. 11(discussing history of letters of marque: in France the first recorded use of letters of marque and reprisal was 1681).
13.^ Upton's Maritime Warfare and Prize p. 176 (discussing the history of letters of marque and reprisal).
14.^ David J. Starkey, British Privateering Enterprise in the Eighteenth Century 20, 81 (1990).
15.^ U.S. Const. art. I, § 8, cls. 10, 11.
16.^ London Gazette: no. 15397. p. 1006. 15 August 1801.
17.^ Eastman, Some Famous Privateers p.45 (reproducing a Letter of Marque granted in 1815 to the Grand Turk).
19.^ Donald Petrie, The Prize Game pp. 3-6, 68, 145 (noting difference between privateering and piracy; some like Captain William Kidd crossed back and forth over the line).
20.^ Petrie, The Prize Game p. 68 (discussing Luke Ryan--in these two years they took 140 recorded prizes).
21.^ William Davis, The Pirates Laffite p. ?.
22.^ Upton, Maritime Warfare and Prize p. 188 (saying prize court condemnation essential to convey clear title).
23.^ Petrie, The Prize Game p. 81 (discussing English hangings after rejecting as illegitimate Letters of Marque issued by Irish under James II, and the Confederate case of the Savannah).
24.^ Robinson, The Confederate Privateers pp 133-151(chapter recounting trial of crew of Savannah and Davis's response; noting the Earl of Derby in the House of Lords protested the Union's treating privateers as pirates).
25.^ Eastman, Famous Privateers of New England p. 44-45 (recounting a custom of the War of 1812, that British captives would insert in New England newspapers "a card of thanks expressing their appreciation for kind treatment accorded them as prisoners."
26.^ Petrie, The Prize Game p. 158 (noting that in 1803 Lord Stowall fined the British captors of two vessels for keeping the captive Spanish crews in irons).
27.^ Lord Russell, French Corsairs at 13-33 (discussing repeated diplomatic efforts to ban privateering between France and England).
28.^ Lord Russell, French Privateering p. 34-35(discussing Franklin's efforts to persuade the French Legislative Assembly to ban privateering).
29.^ Petrie, The Prize Game p. 143 (discussing the end of privateering.)
30.^ Theodore Richard, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy (April 1, 2010). Public Contract Law Journal, Vol. 39, No. 3, pp. 411-464 at 429 n.121, Spring 2010. Available at SSRN: http://ssrn.com/abstract=1591039
31.^ TST: Statement on the Congressional Authorization of the Use of Force
32.^ Paul offers President New Tool in the War on Terrorism on the homepage of United States House of Representatives, accessed at April 29, 2007
William C. Davis, The Pirates Laffite: the treacherous world of the corsairs of the Gulf (Orlando, Fla.: Harcourt, 2005)
Ralph M. Eastman, Some Famous Privateers of New England, (Boston, Privately printed by State Street Trust Company, 1927)
Geoffrey Footner, Tidewater Triumph: The Development and Worldwide Success of the Chesapeake Bay Pilot Schooner (Mystic, Conn: Mystic Seaport Museum 1998)
Grotius, De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty)(Oxford: Clarendon Press 1950)
Donald Petrie, The Prize Game: lawful looting on the high seas in the days of fighting sail (Annapolis, Md.: Naval Institute Press, 1999)
William Morrison Robinson, Jr., The Confederate Privateers (Columbia, S.C.: University of South Carolina Press, 1928)
Lord Russell of Liverpool, The French Corsairs, (London: Robert Hale, 2001)
Carl E. Swanson, Predators and Prizes: American Privateering and Imperial Warfare, 1739-1748 (Columbia, SC: U. South Carolina Press, 1991)
Francis Upton, Upton's Maritime Warfare and Prize (New York: John Voorhies Law Bookseller and Publisher, 1863)