Privateers

There’s no ‘constitutional right’ at work here, in spite of the headline, but you can get Congress’ permission.
It may not get much publicity, but there it is, smack-dab in Article I, Section 8 of the Constitution: Congress has the power to grant citizens “letters of marque and reprisal.” Meaning that, with Congress’s permission, private citizens can load weapons onto their fishing boats, head out to the high seas, capture enemy vessels, and keep the booty. Back in the day, these patriotic pirates were known as “privateers.” At the start of the Revolutionary War, America had a meager navy, so we had to rely on these privateers, who captured nearly two thousand British vessels and confiscated vast amounts of food, uniforms, weapons, and barrels of sherry....

The Founding Fathers were big fans of privateers. Late in life, John Adams wrote glowingly about the 1775 Massachusetts law that first legalized them, calling it “one of the most important documents in history. The Declaration of Independence is a brimborion in comparison with it.”

The author is playing this for laughs, while trying to make the point that originalist thinking is foolish. 

For several minutes, we spoke about originalism and the Constitution. Though it’s obscure, the privateering clause highlights that this document—for all its brilliance and prescience—was written in a vastly different time. Some passages—such as those about the “blessings of liberty” and “equal protection”—are timeless. But others are clearly the product of the eighteenth century.
He would not know this, but there has been quite a lot of recent thought given to restoring privateering. During the early phases of the Global War on Terror, it was regularly discussed as a way of making the market work against the problem. Not just at sea, either: just as land-based forms were used in the 19th century, known as ‘filibusters,’ so too there was considerable thought given to licensing private armies with similar privileges to seize prizes to fight terrorist forces in Africa and elsewhere. 

Probably the best known example is Erik Prince of Blackwater fame, who proposed doing exactly that in Africa and in Ukraine. In the end the government decided that it preferred to keep direct control over armed forces, but consider how poorly that strategy ultimately fared. Really the Russian government did what Prince wanted with the Wagner group, fairly successfully. Those forces proved unreliable against American-backed irregulars in Syria, and haven’t been effective in Ukraine, but they were pretty effective against Islamist irregulars across Africa. 

China, meanwhile, is effectively using a ’gray zone fleet’ of fishing privateers to war against the Philippines over control of the sea lanes and fishing areas. It’s proving quite difficult to contest effectively. Privateers are in play right now. 

Less piratical but still more on the side of militia forces, several US States maintain naval militia to this day. 

It may be that walking around in a tricorn hat and writing petitions with a quill pen s carrying a lot of the weight of making this originalist idea seem dated. With a little more attention, like other constitutional matters it too proves to be of continuing interest. 

8 comments:

Texan99 said...

Erik Prince certainly popped into my mind with the notion of a modern Letter of Marque. I don't share the widespread aversion to privatization. It's true that defense is one of the areas where I'm prepared to be the most statist, so I'd squint quite a bit at pure privatization--but I have no problem with subcontracting some private defense operations, while maintaining national control.

J Melcher said...

Privateers are a sub-set of mercenaries. Just as pirates are a particular set of outlaws.

Terrorists are likewise outlaws and in my mind should (since the dawn of the "sky-jacking" era half a century back) be treated by both national and international as pirates. Gangs, from several nations, bound together by greed and grievances, under no allegiance to a nation or higher commander; a threat to peaceful commerce and the lives of innocent travelers ... terrorists and pirates should be targeted, hunted, taken and hung with due dispatch. If national navies (or law enforcement agents) are too busy, then chartering mercenaries to do the job is perfectly reasonable.

The thing about privateers vs "skyjackers" ... in the age of piracy possession or command of a ship was pretty much equal to ownership. A ship taken as a "prize" in war or in piracy was in any event lost to the original owners. A ship taken FROM pirates BY privateers became the prize and property of the privateers. So too any valuable cargo carried by the pirates. It's a bit unlikely in our era for a band of Dirk Pitt / Jack Ryan privateering commando units to win a claim in ownership of a some AirBus of 747 after an Entebbee style rescue.

Grim said...

“Privateers are a sub-set of mercenaries.”

I don’t think that is necessarily true. I’m fact I don’t think it’s usually true. I think privateers are usually a subset of militia. They’re citizens, not mere mercenaries, who are organized and commissioned by their own government just as companies of militia often were.

They could be mercenaries of course: you could hire out the job with promises of supporting their claims to what they take. “Take control of that ship/island, and I’ll recognize you as owner of it.” But even here you have a stronger relationship than a mercenary one; I can only really protect your claims if I have the power over the place where your new property is, so it ends up being a feudal relationship at least.

J Melcher said...

"I don’t think that is necessarily true. I’m fact I don’t think it’s usually true. "

I admit I spoke from theory rather than data.

Do we have enough instances to decide the matter one way or another?

Grim said...

Enough instances, yes; but there are some practical problems for historians. This article from the Naval Institute explores the question of why so little has been written.

https://www.usni.org/magazines/naval-history-magazine/2014/march/yes-privateers-mattered

Tom said...

Well, it looks like Eric Jay Dolin is closing the history gap on privateering with "Rebels at Sea: Privateering in the American Revolution" (2022) which won a couple of awards, including the Samuel Eliot Morison Award for Naval Literature. It just covers the Revolution, so hopefully he has a sequel coming.

Need to get in the mood for some privateering?

Here's Mark Knopfler's "Privateering" about British privateers "not quite exactly in the service of the crown":

https://youtu.be/iwpDqZULW2Y?si=WMEZh0O2mmfvGGFi

And Stan Rogers's "Barrett's Privateers" about Canadian privateers having not nearly as much fun:

https://youtu.be/mQbh7UNCZdc?si=h8eBklTxSgsvzYR7

I hypothesize, then, that the key to re-establishing privateering in the US would be to close the privateering song gap.

Grim said...

The Confederacy actually used privateers as late as the Civil War. They were effective the first year, but after that the US Naval blockade became effective enough that they had trouble bringing their prizes back to Confederate prize courts for adjudication, and the US State Department was able to talk neutral nations in Europe into not allowing the Confederate privateers to use their ports either. (This was relatively easy, as European governments had banned privateers and wanted the US to do so as well. It had not, to maintain the option in case of war with Europe; but it was willing to agree in return for making sure that the Confederates were denied the tactic.)

Tom said...

Well that's odd. My comment disappeared.

Here's the book I mentioned:

Rebels at Sea: Privateering in the American Revolution by Eric Jay Dolin. It was published in 2022, so it should help fill in the gap Leiner mentioned in the USNI article from 2014.