Every year or so, I run across proposals for Congress to issue Letters of Marque and Reprisal, something it has the power to do under Article 1 Section 8 of the US Constitution, most recently in the context of the war in Ukraine. All of these proposals are stupid on many levels, although explaining why will require an explanation of the history of such letters, both why they existed and why they're obsolete and shouldn't be used again.
A letter of marque is at its core a document that grants its holder the power to seek out and capture enemy vessels as prizes, a power normally reserved for commissioned warships. Without a letter of marque, a private vessel doing this would be a pirate, and even with said letter, it's not just "finders keepers". The prize has to be sent into a port to be condemned by an Admiralty Court as a legitimate prize. If it wasn't judged to be a proper capture, the ship would be released back to its owners, although the details of how this was done are outside the scope of this post.
The obvious question at this point is why anyone would want to issue these letters, and to answer it I'm going to have to channel Brett Devereaux. Letters of marque were essentially a response to limits on state capacity, allowing the issuing states to mobilize resources that they otherwise couldn't harness for the war effort. In the 18th century, the ability of the state to tax was very limited, so a self-funding commerce warfare effort was quite valuable. But recent research has shown that privateering was rarely a good decision from the point of view of those who practiced it. For every privateer who captured a ship full of gold, several ended up with their crews broken men on the Halifax pier. In many ways, privateering was like playing the lottery. In both cases, the expected return was generally negative, but people did so anyway thanks to the chance of a big payout.
All of this held true through the early 19th century, but changes economic, political and technical during the later part of that century combined to kill privateering off. Growing state capacity made privatizing commerce warfare less and less necessary, while the increasing sophistication of warships made it difficult for a converted merchant vessel to compete. By the later part of the century, only the fast liners had sufficient range and speed for commerce warfare. They were expensive and few in number, and governments preferred to use them as commissioned auxiliaries instead of leaving them in private hands. In 1856, during the aftermath of the Crimean War, the Declaration of Paris was signed, outlawing privateering by the signatories. The US was not among them due to a disagreement over seizure of goods at sea by naval forces, although American dedication to commerce warfare in the era before Mahan probably played a part. The US never used this power again, although the CSA did deploy them in the American Civil War with little success.
The final blow to privateering came in the later part of the century, as telegraph and radio allowed the British to develop new methods of trade protection and trade warfare. Raiders would be hunted down by large, fast cruisers, completely overmatching any possible civilian vessel, and, from the early 20th century on, directed centrally thanks to information integration at the Admiralty. Nor was there any reason to dispatch private raiders to hunt enemy commerce. Most of it could be immobilized without firing a shot thanks to British control of maritime insurance and related trades, an early predecessor to the methods being used against Russia today. What was left was best swept up by cruisers working in concert with headquarters ashore, not private vessels with no coordination.
All of these trends have continued today. First, the Declaration of Paris has been around long enough, and unchallenged long enough, that it's generally considered customary international law, which means that it's binding even on non-signatories, and in at least one case, the US has come out in support of it. (International law is very weird.) On the other hand, there's not really an enforcement mechanism, so if the US was to issue Letters of Marque, the international community has limited options. But these options include treating the seizures as illegal, which would limit use of vessels and traceable cargo to American waters, which would probably discourage the practice. On the whole, a bad idea from a policy standpoint. (Although maybe if they were granted waivers under the Jones Act...) For that matter, the USN abolished prize money for naval crews in 1899, with Britain following in 1948, raising the possibility that any sort of prize-taking is essentially gone.
Second, the technological aspects continue to work against the privateers. Controls on heavy weapons are much tighter than they were in the 19th century, so it's not clear what privateers would arm themselves with, or how they could enter foreign ports even if the US grants permission. While the internet has made it possible for private citizens to track ships in near-real-time, navies can access the internet too, as well as information not available to the average civilian.
Third, governments now have better ways of mobilizing power should they need the sort of light commerce warfare platforms that converted merchant ships could provide. At worst, they could simply commandeer the vessels that would be used, and enlist whoever would have manned them (probably private security people) into the Navy, which was not an option during the Napoleonic Wars.
Of course, this only applies to the relatively sane proposals where the Letter of Marque is used within its historical meaning, such as this one from Proceedings in 2020. The current proposal, from Rep. Lance Gooden, covers "yachts, planes and other assets", so long as it belongs to someone on the sanctions list and isn't inside the US. This is completely bonkers, as it isn't really a letter of Marque (international law long protected assets on land in a way it didn't at sea) as well as being a foreign-policy disaster. Fortunately, it will die before it goes anywhere, but I'm starting to wish we could amend the Constitution to remove that provision. It's obsolete, and if nothing else, it would reduce the amount of time I spend annoyed over this stuff.
Comments
Isn't all shipping done under false flags anyway today?
Also, if I recall, the Spanish response to the letters was to ignore them and send them to the gallows anyway.
Paragraph 4, "only the had sufficient range and speed for commerce warfare" is missing a noun.
To summarize, in order for privateering to work for the United States, the United States Government would need to provide the weapons because nobody sells even light naval armaments to civilians, provide logistical support because the privateers wouldn't be allowed to operate out of non-US ports, provide diplomatic and probably military protection to prevent the rest of the world from treating them as pirates, and pay for everything out of the Treasury because there's no way to make a profit selling your captured prizes. At that point, there's no advantage over just using those treasury dollars to lease the ships and hire the crews into the United States Navy.
“By the later part of the century, only the [??] had sufficient range”
The most sensible-sounding proposal I've heard was to issue letters of marque as a way to work around the laws against civilian ships being armed in various foreign ports. The theory was roughly as follows: 1) If you want ships to be able to defend themselves against Somali pirates they need to be armed. 2) Civilian ships being armed is illegal in a lot of places. 3) Military ships being armed, OTOH, is perfectly legal - expected, really. 4) The Navy doesn't want to run merchant trade, nor do the shipping lines want that. 5) But if all the shipping lines who'd like to defend themselves just happen to be given letters of marque, then they're still normal civilian ships for most purposes, but they can legally defend themselves like military ships.
In fairness, I don't know if this would actually work. TBH, I assume that it wouldn't. But it's at least asking letters of marque to do something that isn't obsolete.
Conversely, asking for them to be used against Russia is just a straight-up act of war. Like a no-fly zone, like sending some A-10s in to strafe Russian columns, and like a lot of other proposals that we're seeing. And if we want to go to war with Russia, then a privateer will not be our weapon of choice.
In addition to the other issues mentioned; it's likely that the more recent "International Law" restrictions on mercenaries will be considered applicable to privateers. (They're one of the things complicating armed self-defense against pirates, I've been given to understand; while mercenary anti-piracy teams do exist and are used, their deployment is complicated by having to work around the International Law restrictions on same)
There was a malformed link in Paragraph 4 hiding a bit of text. Fixed now.
@ike
False flags are different from flags of convenience, which is what you were thinking of. But flags of convenience would be a serious issue for any sort of prize-based trade warfare, as would ownership in general given how complicated that can get these days. For the sake of all involved, probably best to make sure that nobody making the decisions has a financial incentive.
At the time, that would be a breach of the rules (assuming the privateers were following them, which they likely weren't). Today, I'd say that it would actually be justified under international law as we know it.
@Alsadius
Interesting thought, but I still don't think it would work. It wasn't illegal for merchant ships to be armed during the age of sail, so letters of marque didn't grant special privileges in that regard. It just meant that (a) you weren't a pirate if the other side caught you (probably) and (b) you could legally make money from capturing enemy ships. Also, nobody has any incentive to recognize them, as they're not part of customary international law anymore.
"broken men on the Halifax pier" always happy to see Stan Rogers mentioned outside of Canada.
You mention that Britain only abolished prize money in 1948--did anyone receive prize money during the second world war? And did it work like it did in Aubrey's day, with the admiral taking his eighth?
It looks like they adopted a rather different approach in both the world wars. Instead of going to specific crews, the prize money was put in a general fund that went to all naval personnel at the end of the war. Presumably this was to avoid the same problem that led to its abolition in the US after the Spanish-American War, where naval crews were seen as rather mercenary. Details are sparse because Google is swamped by talk about the Oldenberg, which was salvage, not a prize.
According to Wiki, at least one of HMS Belfast's 1939 captures led to prize money.
The Stan Rogers reference is probably this?
@Bean: This wasn't intended to work around classical laws, though, it was entirely aimed at working around modern laws. The intended context was the big spate of Somali piracy a few years back. And yeah, I mentioned Belfast winning prize money in my museum review of her (though it was 100% cribbed from that Wiki article, I'll admit).
@Muddywaters: Yes, that is very certainly a Barrett's Privateers reference.
@bean: can't get the details right now through Google, but IIRC, at least the crew of one Coast Guard cutter in Greenland received prize money for capturing a German weather ship; they were able to get away with that because they had not been taken into Naval service when it happened, so Naval rules didn't apply.
Is a "Letter of Reprisal" a related-but-separate thing from a "Letter of Marque", or is a "Letter of Marque and Reprisal" a single thing that's often shorthanded as "Letter of Marque"?
From Google, "In the technical sense, a letter of marque is permission to cross over the frontier into another country's territory in order to take a ship; a letter of reprisal authorizes taking the captured vessel to the home port of the capturer.
Read more: Marque and Reprisal - Letters, Vessels, Privateers, and Privateering - JRank Articles https://law.jrank.org/pages/8441/Marque-Reprisal.html#ixzz7N9CwzUk3"
I am unaware of any cases where one was issued without the other, and "Letter of Marque" is commonly used for both.
Of course in the really old days, you had three classes. 1. Privateers, who had letters of marque, and were outsourced commerce raiders. 2. Pirates, who were outlaws hated by all 3. Buccaneers. Who typically did not have letters of Marque, but restricted their attacks to countries that their own country was at war with, at the moment, as far as they could tell given the state of transoceanic communication.
The Buccaneer was hence sort of supported by their own government (particularly the English). And many did end up with letters of marque. The main advantage of a L.O.M being that if you were captured this could go a long way to proving you weren't a pirate. Because pirates were hanged, but privateers and buccaneers were P.O.Ws and treated as such.
Source: Biography of William Dampier, F.R.S. and buccaneer, as proven in a couple of court cases where he risked being hanged if found guilty of piracy. Also first European to visit north coast of Australia.
Counterpoint: we need more folk songs.