Would you want to legally act like a pirate
Would you want to legally act like a pirate?
By Gerald A. Williams
The month of April is often associated with spring, with rain, and with the Christian celebration of the resurrection of Jesus Christ on Easter. However, in April 1776, our Continental Congress needed a navy; but could not afford to pay for one. Their solution was to allow private citizens to behave, more or less, as if they belonged to an actual military navy.
On April 3, 1776, the Continental Congress issued a document that would likely not survive modern scrutiny. It was titled, “Instructions to the commanders of private ships or vessels of war, which shall have commissions or letters of marque and reprisal, authorizing them to make captures of British vessels and cargoes.”
The document authorized commanders of private ships to “subdue and take” by “Force of Arms” any ship belonging to Great Britain that was sailing “on the High Seas.” Congress granted permission for privateers to seize soldiers, weapons, gunpowder, ammunition, and other provisions. There were not many conditions, other than prohibitions against murder and against torture.
One historian estimated that approximately 2,000 American privateers captured 3,087 British vessels. While they substantially impacted Great Britain’s economy and helped the American war effort, their motive to sail was apparently primarily driven by the profits they would make selling captured goods.
Interestingly, Congress required these privateers to bring any seized people and property before a judge in a court authorized to hear civil and maritime cases. There was a requirement to testify under oath and to certify by affidavit as to the authenticity of any captured documents. Reports to Congress were also required.
Admiralty courts in the American colonies had previously been an extension of the might and power of England. They operated under the High Admiralty Court of England and their role often seemed to be the enforcement of regulations and the preservation of government power. They settled trade disputes and what were known as prize cases, which determined the disposition of captured cargo.
Believe it or not, our federal Constitution, at Article I, section 8, still specifically authorizes Congress to “grant letters of marque and reprisal.” However, Congress apparently has not issued one since the War of 1812.
How Would Letters of Marque Work Today?
There’s a debate among some commentators whether letters of marque would be useful today. Some have suggested that it would be appropriate to contract out some anti-terrorism missions to a group of international bounty hunters.
While admitting that it would be improbable, if not politically impossible, once military commentators explored the possibility of applying the historical concepts associated with letters of marque to modern cyber security threats. For example, would it be appropriate to allow private citizens to track and freeze (or even seize) the funds of international criminals? Should similar tactics be used to disable the communications capability of online criminals?
An interesting legal question is whether Congress could issue a letter of marque to authorize a private contractor to do something that the President is against. Hopefully, our country will never go down such a path.
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