“A Note On Privateers”
By Joan Wenner, J.D. · Originally published May 2019 · p. 13
April issue’s “Through the Lens” including some discussion on legitimate privateers versus high seas robbers was surely very interesting to many readers. Not all may realize the origin of laws relating to the practice, including our own Constitution.
Privates roving the seas in armed vessels “without any commission or passport from any government,” and “attacking all manner of vessels may prompt a return to a granting to private entities” Letters of Marque & Reprisal. Dating back to Revolutionary War days, the English addressed piracy in its admiralty courts and later the common law courts by Statute of 28, Henry III. The law of margue (pronounced “mark”) while often used with a sort of law of ‘reprisal’ entitled he who has received any wrong from another, and where justice fails to take the goods (or body) of the wrongdoer, allows the private entity, the so-called ‘privateer,’ to find them wherever found in satisfaction of the wrong. Certain situations and the extent of a privateer’s authority can get complicated; generally any capture by someone duly commissioned by a nation at war to capture boats of the enemy, the ‘privateer’ is justified under the government warrant or commission with regard to his acts and thus given sufficient protection against imputing ‘piracy’ to him.
Robbery on the High Seas Robbery on the high seas is ‘piracy’ and considered done animo furandi. This Latin term means ‘with the intention to steal.’ Numerous court decisions say that, in the spirit of universal hostility, and specifically one crime held to be against the United States under the Act of April 30, 1790, plus the word “piractical,” appears in the Act of 1819 referring to the class of offenses pirates perpetrated. Modernly, partly due to global treaties and practices, ‘reprisals’ are typically confined to seizures of commercial property by government ships though presumably this can shift to companies under contract to the military. If further incidents assume “the character of a private unauthorized war,” the law of nations will likely inflict the punishment and penalties the laws allow.
U.S. Constitution, Article 1, Sec. 8, Clause 10,11 This clause gives Congress the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. In other words, a letter of marque gives official permission to capture enemy vessels. Joan Wenner, J.D. has contributed for many years to the Civil War News and The Artilleryman among other history publications and has a law degree. Send comments to [email protected].