Help Wanted: Maritime bounty hunters and adventurers

A letter of marque issued by the United States against France during the Quasi War

Classical libertarianism has always recognized a (very) few legitimate functions properly reserved to the government, two of those being national defense and law enforcement. Until perhaps now. One of my favorite Congressman, Ron Paul of Texas, has come up with a novel (or very old depending on one’s POV) response to the problem of modern day piracy. He wants Congress to exercise a long moribund constitutional power (Article I Sec 8) which asserts that “Congress shall have the power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” It’s the letters of marque and reprisal part that he is interested in.

First we need to discuss what a letter of marque is (or more correctly was). A letter of marque was essentially a license issued by a sovereign government to a private (non-government) person or entity authorizing them to commit certain belligerent acts which normally could only be done by national governments in retaliation for some offense. In practice this usually meant capturing commercial ships at sea that belonged to a hostile foreign nation or that were discovered carrying war contraband. So called private warships or “privateers” that were armed, manned and otherwise equipped at private expense would sally forth on the high seas and seize enemy ships and their cargoes. These would then be brought into a port where a duly constituted court would review the capture and either let the ship and its cargo go or condemn the vessel as a lawful prize. If a vessel was condemned as a lawful prize then it and its cargo were forfeit. The ship and cargo were normally sold at auction with the proceeds being split between the financiers of the privateer and her officers and crew on a prearranged basis. Back in the day a lot of people got very rich privateering.

The letter of marque was an essential item though as it distinguished the lawful plundering of maritime commerce, or kidnapping, robbing and killing of people from the unlawful sort. It was in short, what separated the pirate from the patriotic business adventurer. Absent a proper letter of marque you were considered a pirate, and in those days pirates typically got rather short shrift in the legal system. What Congressman Paul wants to do is revive the practice by issuing letters of marque against pirates and essentially create a group of modern day maritime bounty hunters.

Alas, there are some problems with this idea. First the issuance of letters of marque and reprisal is pretty much illegal nowadays. Point in fact the practice was outlawed by the Declaration of Paris in 1856. Privateers were reclassified as war-criminals, essentially no different than pirates. Although the United States never signed the DofP it has abided by the treaty ever since. During both the Civil War and the Spanish American War the United States gave formal assurances that it would not issue letters of marque although there appears to have been some contemplation of the practice.* (The Confederate Government did issue letters.) Only one letter is alleged to have been issued by the United States since the War of 1812. This to a civilian airship during World War II, however available records do not confirm this.

Modern international law covering war and belligerency no longer contains any provision for letters of marque and reprisal. The concept is effectively dead, and without recognition under international law the letters would not shield their holders from prosecution for piracy, kidnapping, robbery, murder or any other criminal charges. Recall that a major point of a letter of marque is to protect the holder from being condemned as a common criminal. As virtually all nations no longer recognize this 18th century practice as legal, a letter will not be of particular value to its holder.

In other words any enterprising and patriotic business adventurer contemplating the acquisition of a letter of marque so that he might plunder the vast wealth of Somali maritime commerce in retaliation for their undoubted piratical depredations would do well to ask himself how much faith he is willing to put in that piece of paper should he be captured or arrested? Remember that in the present day and age under international law if you are boarding another ship without permission and you don’t wear a naval or law enforcement uniform you are liable to be labeled a pirate in your own right. And while we Americans have grown a bit soft and romantic in our attitudes towards piracy, in some parts of the world that’s still a charge that can put you on the fast track for a long drop with a short rope.

Beyond the legal questions there are the practical and moral considerations. Letters of marque were essentially a license to wage war for private profit. As one might expect, they were the subject of frequent abuse with the line between lawful activity and unlawful piracy being often blurred or simply ignored. The temptations were just too great. And of course these vessels were manned by civilians who were not under any military discipline. There is no reason to believe such would not happen again.

Just look at the problems we have had with private contractors and mercenary units in Iraq. Romantic notions about "privateering" aside, in real life these persons were all too often little more than pirates with a get out of jail free card. Their ruthlessness and brutality was a constant source of scandal, which is one of the reasons the practice has long been banned by the international community. It was simply too difficult to regulate. Do we really want Black Water security doing maritime bounty hunting?

In conclusion, and with all due respect to Congressman Paul, privatizing war and or law enforcement is a really bad idea that is best relegated to the history books.

*At one point during the Civil War when relations with England had been strained to the breaking point the British Ambassador was pointedly warned (and the warning was duly relayed to London) that there were 300 blank letters of marque sitting on President Lincoln’s desk. The threat being that if hostilities broke out Britain could expect substantial damage to her commercial shipping. The crisis was resolved in due course without war.