By Stephen L.Hall
It is time we seriously contemplated a less serious portion of the Constitution with respect to human nature, comity among nations, and the modern global political situation.
“The Congress shall have the Power To . . . grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water . . . .” Sect. 8, Article I, U.S. Constitution.
“Marque and Reprisal: A commission by which the head of a government authorizes a private ship to capture enemy vessels.”
“The authority to do such capturing is granted to private vessels in letters of marque and reprisal. In the technical sense, a letter of marque is permission to cross over the frontier into another country’s territory in order to take a ship; a letter of reprisal authorizes taking the captured vessel to the home port of the capturer.”
“Since letters of Marque and Reprisal allowed privately owned and operated vessels to carry out acts of war, the practice came to be known as privateering. Privateering was frequently encouraged from the period between 1692 to 1814, at which time weaker countries used privateers to hurt a stronger country in the way guerrilla warfare is currently used. Privateers operated concomitant to regular navies. Their main purpose was to annoy the enemy; however, an enemy’s merchant vessels were often seized in retaliation for acts of hostility.”
The authority to issue Letters of Marque and Reprisal, is vested in Congress as what was contemporaneously to the drafting of the Constitution a common practice among nations, a level of lesser hostilities than one would experience in open warfare, but hostile nevertheless.
It was for many centuries, beginning in the mid fourteenth century up through the mid nineteenth century, about half of a millennia, a type of cold war between nations. That’s right, The Cold War was not a modern invention, but certainly the grandest version of the hostile positioning and maneuvering practices of old.
It has been more recently considered the possibility of reviving this ancient practice in modern times. It has even been proposed as a possible check by Congress on a reluctant President, by William Young. I shall endeavor to show a different perspective on the practice of Marque and Reprisal, and how in some respects, it has never really gone away, despite the Treaty of Paris (1856).
Both The Federalist article and Mr. Young’s law review article, envision the modern day version of the Letters of Marque and Reprisal as a form of limited warfare, a type of private mercenary force for executing foreign policies and interventions.
Of course, it occurs to me, as I’m certain it occurs to you, that this is a completely erroneous and misguided perspective upon the tradition and character of the Marque and Reprisal accounting for its historic roots.
The practice of Marque and Reprisal began as a sovereign authority for private persons to take it upon themselves to right private wrongs, to force the citizens of a foreign nation to make restitution for the harm that they had caused to the privateer.
As nations became militarily stronger and more capable, this fourteenth century practice was later revised, in part, with the authority of the sovereign under what has legally came to be known as in rem jurisdiction. That is, as is often cited, suppose a ship belonging to a foreign national were to crash into another ship thereby causing the damage to the other ship. Clearly the foreign national, the owner of the ship, would be liable for the damage, however the he is not physically present being at home in another country. The courts have no capacity to hold someone accountable who is not within their jurisdiction.
Lest the ship sail away out of the jurisdiction of the state, flee and escape liability, the local courts presume that it was not the owner who caused the damage but the property itself. Thus the state seizes the property and holds the value of that property as collateral for the damage done by the negligence of the foreign national’s agents under a legal fiction that the inanimate object is liable. It is essentially a Marque and Reprisal by the state against the property of the foreigner done on behalf of the citizen without the citizen being required to seize the property by his own efforts.
In part, it is in this seizure of assets of foreign nationals where the original concept of Marque and Reprisal lives, not in the idea of a private mercenary group working for the government. Marque and Reprisal was always founded upon the self interest of the civilian actor paid from the proceeds of the property marked for confiscation in reparation of the attested wrong.
It is the case of citizens suing in court attacking the property of the foreign nation or foreign citizen, which is actually more akin to the reprisal portion rather than the marque as the property attacked is in the state’s jurisdiction. A marque would be for the citizen to travel to the foreign state to there seize property.
Which leads us to the other side of the Marque and Reprisal, a later development, that concept that the private quest for justice evolved into a means of a contest between nations using citizens to attack the commerce of a rival nation.
In the modern era, it is the corporate entity more than the private individual which embodies the economic might of a nation. Information is often as valuable as any cargo, cargo itself has vastly increased in volume, and money has been reduced to tabulations on a stick or clay tablet, I mean electronically encoded in the aether.
Marque and Reprisal in the latter centuries was a form of commercial warfare as opposed to physical or military warfare; it was an attack directly upon the economic health of a nation’s rival. It was done privately because the financial motivation to the privateer was the greatest incentive for their success that they got to keep a goodly share of the rapine and plunder of their own successful efforts.
States often mistakenly view economic progress as a kind of race, in a kind of mercantile competition as just another field of battle in the competition between civilizations. While not the healthiest philosophy promoting comity betwixt nation, it has the effect that smaller nations are very often looking to slow down and hinder those nations ahead in the race, who are more successful than they.
Wealth being the primary measure of success in this race to most people, a nation seeks to bring more of that wealth into their own nation. It does not matter to that state who gets the money, only that it flows from outside the nation to somewhere inside the nation. Thus, nations do not always enforce laws against otherwise nefarious or underhanded practices if those practices are directed at the citizens of a wealthier nation.
Emails from a Nigerian Prince come to mind, but there have been whole villages in foreign nations making money off of internet blackmail scams. For some larger nations, the economic warfare can become pervasive for their benefit, such as China’s complete disregard to US copyright laws, selling Hollywood movies in large scale piracy operations, or more properly, privateering operations.
Yes, the pirating of US movies is a modern form of privateering. While no formal letters of marque and reprisal have been issued, the Chinese government has simply stated that US copyright laws are not recognized and enforceable. While that makes cheap reproductions of intellectual property readily disseminated in those countries, it doesn’t bring in wealth, merely stems the outflow of wealth.
A couple other situations come to mind regarding China. After a hurricane hit Florida a few years back, building supplied to rebuild were in short supply, particularly drywall. So, in order to make up the shortage, a lot of cheap drywall was imported from China. That drywall was made with chemicals which later caused serious damage to the houses in which it was placed including a foul odor and corrosion of the electrical wiring. Another instance was the discovery of noxious chemicals in certain products, in this case toys, made in China and sold to Americans for their children.
It is not merely China, but imported food from places like Mexico have repeatedly been found to be contaminated with salmonella or e-coli bacteria, prompting massive food recalls. Electronically, there are often foreign malware and phishing software scams coming out of places like Russia. Online dating scams, telephone scams, and other forms of cyber-scams. Vastly more money is stolen every year in electronic crimes than in physical robberies and home break-ins. The list can become quite extensive.
What about the illegal aliens crossing the US border with the tacit endorsement of our neighbor Mexico? What about the flood of near eastern and African economic opportunists pouring into Europe for free food, clothing, & shelter? Is this by the design and collusion of those neighboring countries?
One has to wonder whether such practices are the accidents they are claimed, the accidental lack of quality controls, the operation of underworld criminals; or whether those activities have some sort of sanction, however unofficial, of the governments of those nations in which they appear to occur.
Are our economic competitors surreptitiously engaging in a modern version of Marque and Reprisal, a privateering warfare to bring down their rivals? History would tend to favor such an interpretation. Human nature does not really change that much; and neither does the strategies and behaviors of nations.
