Letters of Marque May Not Be Dead
Unless one studies the Constitution, one probably does not know that Article I (Legislative), Section 8, Clause 11 gives Congress the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.
The first known letters of marque were issued around 1243 by King Henry III of England to authorize selected members of the nobility to seize enemy ships and share the proceeds (from the auction of the ship, cargo, and sometimes the crew) with the crown. The quid pro quo was that the noble holding the letter of marque could keep the majority of the money, thus enhancing his wealth.
The word marque comes from the French Provençal dialect word marca or marca which translates “to seize or pledge.” The crown (the ruling king or duke) would write a letter to the individual that would authorize him to man and equip a ship to take ships of a specific country or countries. Hence the term letter of marque.
During the American Revolution, the Continental Congress issued 1,697 letters of marque, and the 13 state legislatures added somewhere between 942 and 1,151 more. They were effective in that American privateers captured 3,087 ships of His Majesty George III’s merchant marine. (See May 5th, 2019 Blog Post #21 – Prize Money, Patriotism and Instant Wealth – https://marcliebman.com/prize-money-war-patriotism-and-instant-wealth/ )
When the war of 1812 broke out, Congress issued about 1,100 more. Records are imprecise, but most historians believe that U.S. Privateers took between 1,500 and 2,000 of George III’s ships during the two and a half years of war.
Fast forward to the American Civil War when the Confederacy issued 99 letters of marque. They were not as successful as their predecessors and took few U.S. ships. Lincoln’s government did not issue any.
History tells us that since the first letter of marque was issued, there were many treaties over the next 600 years that abolished them. All were ignored by the signatories in any subsequent war.
In 1856, seven nations (Austria, France, Russia, Sardinia, turkey and the United Kingdom) signed the Paris Declaration Respecting Maritime Law. Ultimately 24 nations plus most of the German and Italian duchies agreed to its provisions. One of its clauses specifically abolished privateering and letters of marque. Initially, the United States neither signed nor agreed to the document but did so in 1861 when the Civil War broke out. The Confederacy agreed to all the provisions except the one on privateering.
Holders of a letter of marque can only seize ships of a declared enemy of the government that issued the letter. The privateer is required to take the captured ship to be sold in a port in the issuing country or one with which it is allied or a neutral country.
In return for a letter of marque, the owner(s) of the ship are required to remand a portion of the proceeds from the sale of any captured ship, usually between 10 and 15% to the country that issued the letter. In addition, if a privateer holding a valid letter of marque is captured, is crew are to be treated as prisoners of war, not pirates. The infamous or, depending on your point of view, pirate Captain William Kidd was hung because English authorities did not believe his letter of marque was valid.
Here’s the interesting factoid. The concept of the letter of marque is not dead. In recent years, several Senators and Congressmen have introduced bills that would have, if passed, authorized privateers to seize ships owned by drug cartels, Russian oligarchs, or captured by Somali pirates. None made it to the floor for a vote.
Image is the 1837 engraving of the hanging of Captain Kidd