Sparks Commentary: 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

Power to issue “letters of marque and reprisal” is derived from power to declare war

Grants of permission to raid enemy shipping are obviously acts of war, so Blackstone wrote in the “Commentaries” that in his time, “the ministers of the crown [could] issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal [declaration] of war.” (Source: Book 1, Chapter 7) Thus, the government's power to grant “letters of marque and reprisal” was derived from its power of declaring war, for the government of Blackstone's time as well as our own.

Actual letter of marque given to Captain Antoine Bollo, 1809

Some kind of impartial government must decide when this is legal, and when it is not

Blackstone also wrote in the “Commentaries” that “These letters are grantable by the law of nations [footnote], whenever the subject of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case,” Blackstone continued, “letters of marque and reprisal (words in themselves synonymous and signifying a taking in return) may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found.” (Source: Book 1, Chapter 7) Blackstone concluded by saying that “Indeed this custom of reprisals seems dictated by nature herself; and accordingly we find in the most ancient times very notable instances of it [footnote]. But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own [case].” (Source: Book 1, Chapter 7) Hence, the need for an impartial government that would decide when this was legal, and when it was not.

Sir William Blackstone

In America, the states have no power to grant these letters under the Constitution ...

Again, grants of permission to raid enemy shipping are classic acts of war, so only the American federal government has the power to decide when it's legal or not in this country – although it hasn't done it at all recently, since the times seem to have changed somewhat in this regard. (More about that later.) Thus, the United States Constitution says that “No state shall enter into any treaty, alliance, or confederation; [or] grant letters of marque and reprisal” (Source: Article 1, Section 10, Paragraph 1). Similarly, the Constitution also says that “No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of delay.” (Source: Article 1, Section 10, Paragraph 3) These powers are the exclusive domain of the federal government, and are thus prohibited to the states under the Constitution.

Constitution of the United States

... but the federal Congress does (and here's the proof)

By contrast, the United States Constitution also says that the federal Congress shall have the power to “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water” (Source: Article 1, Section 8, Paragraph 11). Notably, the United States Constitution also says that the Congress shall have the power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations” (Source: Article 1, Section 8, Paragraph 10). The part about “defin[ing] … piracies” meant that it had the authority to decide what was privateering and what was not; as an extension of its powers regarding “letters of marque and reprisal.”

United States Capitol, the building where the Congress meets

So with that said, mateys, I'll go out and “swab the poopdeck,” and fire a broadside off the “starboard bow.” 😉

Footnote to this blog post:

In 1856, there was a Paris Declaration Respecting Maritime Law, which was ultimately agreed to by 55 nations. The relevant clause in this document says: “Privateering is and remains abolished.” (Source: Text of the document) Although the United States has never officially been a signatory to this agreement, it has not actually issued “letters of marque and reprisal” since 1815, some four decades before this declaration was signed.

There was a controversy over the use of submarine-hunting Goodyear airships in the early days of World War II, where some referred to the airships Resolute and Volunteer as operating under a “privateer status.” Nonetheless, Wikipedia argues that Congress never actually authorized a commission, nor did the president sign one. (See this page for details of their argument.)

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