How Congress can give legal permission to be a “pirate” (er, “privateer”)

“[The Congress shall have the power] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ... ”

- Article 1, Section 8, Paragraph 11 of the United States Constitution

First of all, what's the legal difference between “piracy” and “privateering”?

In prior times, it was common for governments to grant official permission to raid the shipping of their nations' enemies, and allow them to be “privateers” in their nation's service. Things that would otherwise be considered “piracy” would be considered legal in this time if they had the official “letters of marque and reprisal” to allow them to do it. Privateering under a “letter of marque and reprisal” was protected by law, while things that were considered “piracy” were illegal even then.

East Indiaman Kent battling Confiance, a privateer vessel commanded by French corsair Robert Surcouf in October 1800

“Letters of marque and reprisal” are just official permissions to engage in these actions

Why do I mention this? Because there's a part of the Constitution about granting “letters of marque and reprisal” to privateers – or rather, two parts about it – which might be worth going into here. I should first note that “letters of marque and reprisal” could sometimes be shortened to just “letters of marque.” In the Federalist Papers, Alexander Hamilton sometimes used the great Sir William Blackstone's “Commentaries on the Laws of England,” as a source for his arguments. (For the details of this, see this blog post about it.) I will thus try to use his same source, when I derive a good legal definition of “letters of marque and reprisal” for our purposes. In the “Commentaries,” Sir William Blackstone wrote that “the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seize the property of the aggressor nation, without hazard of being condemned as a robber or pirate.” (Source: Book 1, Chapter 7)

Sir William Blackstone

Influences on the Constitution

Introduction: The document that changed everything in America …

When the Constitution was written, there was a lot going on at that time! The questions of this series. My aims in this series.

Interior of Independence Hall

Influences on the Constitution

The Constitution itself, and the story behind it

The Constitution itself, and the story behind it

Debates over the Constitution, then and since

Debates over the Constitution, then and since

Cold War crises: Korean Air Lines Flight 007 and “Able Archer 83”

“Is this a game, or is it real?”

– Quote from “WarGames” (1983), a fictional movie about a close call with nuclear war, which came out a few months before the first of these real-life crises

The Soviet Union shoots down Korean Air Lines Flight 007 …

In 1983, a Boeing 747 aircraft took off from JFK International Airport in New York City on the 30th of August. Its planned destination was Seoul in South Korea, but it was scheduled to make a stop in Anchorage, Alaska, and routinely did so on the following day (the 31st of August). But the aircraft actually never made it to its planned destination, because it was shot down the next day on the 1st of September. It was flying over prohibited Soviet airspace. The Soviets thus mistook it for an American spy plane, and sent up a Sukhoi SU-15 interceptor aircraft to shoot it down. The interceptor did the job with air-to-air missiles, and the aircraft quickly crashed into the Sea of Japan, near Moneron Island west of Sakhalin. All 269 passengers and crew were killed, including a United States Congressman from Georgia named Larry McDonald. Two weeks later, on the 15th of September, the Soviets actually found the wreckage under the sea; and in October, they even found the flight recorders. But they kept all of this secret for the next ten years, not releasing any of this until 1993. (I borrow some of the wording for this blog post from various parts of Wikipedia, which I must acknowledge here as a source.)

HL7442, the same plane that was shot down as “Korean Air Lines Flight 007”

A review of “The Dark Ages” (History Channel)

The term “Dark Ages” usually refers to the Early Middle Ages, if it is used at all …

People once used the term “Dark Ages” to refer to the entire Middle Ages. But now, when the term is used at all, it usually refers to just the Early Middle Ages – that is to say, the centuries immediately after the fall of the Roman Empire in the West. A number of people today have actually objected to the use of the term “Dark Ages” itself. But although the History Channel acknowledges the prevalence of this objection, it obviously does not agree with it, as it seems to make clear in this documentary. Whatever you call this period, though, it is clear that the fall of what Westerners today call the “Roman Empire” left chaos in its immediate wake.

How did Sir Edward Coke influence Sir William Blackstone?

In 1481 or 1482, Sir Thomas de Littleton wrote a then-famous work called “A Treatise on Tenures.” More than a century later, Sir Edward Coke commented on this work, by writing “The First Part of the Institutes of the Lawes of England, or a Commentary on Littleton” in 1628. More than a century after that, Sir William Blackstone discussed Coke’s work in the first volume of his “Commentaries on the Laws of England” in 1765. Coke is the person that Blackstone cited the most in the “Commentaries.” In this great work, Blackstone thus wrote a brief summary of Sir Edward Coke’s writings, to set up his esteemed source (whom he would use often throughout his work). He prefaced this summary with the following praise:

Sir Edward Coke

Lord Chief Justice Coke was “a man of infinite learning in his profession”

“Some of the most valuable of the ancient reports are those published by lord chief justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However his writings are so highly esteemed, that they are generally cited without the author's name [footnote].” (Source: Blackstone’s “Commentaries,” Introduction, Section 3)

Sir Thomas de Littleton

Blackstone's summary of Sir Edward Coke ...

Blackstone then gave his brief summary of Sir Edward Coke's writings:

“ … the same learned judge we have just mentioned, Sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method.” (Source: Blackstone’s “Commentaries,” Introduction, Section 3)

Sir Edward Coke