Privateers

Privateering is the act or the employment of attacking and seizing vessels or other property belonging to an enemy, at sea, by means of privateers. Privateers are armed vessels that are owned, equipped and officered by one or more private persons, but sailing under a commission, usually called letters of marque, from a belligerent state, which empowers the person or persons to whom it is granted to attack and seize, at sea, vessels or other property of its enemy.

Pirates and Buccaneers

The offence of piracy was dealt with in England before the 16th century according to the civil law in the High Court of Admiralty. The Offences at Sea Act 1536 (UK) provided a new means of trial for 'treasons, felonies, robberies, murders and confederacies' within the jurisdiction of the Admiral. They were to be tried by special commissioners according to common law procedures. The criminal jurisdiction of the Admiral, including that over piracy, thus passed to a common law tribunal, and eventually was transferred intact to the ordinary criminal courts of the country. But the substantive offence of piracy jure gentium (by the law of nations') remained at least in theory a civil law offence.

The Piracy Act 1670 (UK) created a series of offences for the master and mariners of 'English' ships who surrender too easily to 'any Turkish ships or vessels, or to any pirates or sea-rovers whatsoever', whilst proferring rewards to those successfully defending their ship (also available to their widows and children). It encourages ship building and penalises the destruction of a ship by its officers or crew. This Act does not call any of the offences that it creates 'piracy', but most of the felonies that it establishes were re-enacted under that label in later Acts.

By the late seventeenth century, unemployed sailors in the English colonies had coalesced into pirate bands to seize ships and strike in revenge against societies they felt had abandoned them. The pirate was hostis humani generis, an enemy of all mankind. Pirates were subject to a universal criminal jurisdiction. Any nation could prosecute and punish piracy. If a nation did not wish to prosecute, then it had an obligation to extradite pirates to states that would. There were no safe havens.

English naval forces were often assisted by private ship crewmen. These privateers were paid to plunder rival merchant vessels. After the war ended in 1713, many privateers turned to piracy. Edward Teach, the infamous Blackbeard, served England gallantly as a privateer in Queen Anne's war. His energetic pirate career began in the Caribbean with pirate Benjamin Hornigold. Blackbeard set off on his own in 1717 when Hornigold rewarded him with a ship they had hijacked. Renaming the vessel Queen Anne's Revenge , he outfitted her for pirating, including 300 men and 40 cannons. Blackbeard sailed the Caribbean and the Atlantic along coastal waters of American colonies, torturing merchant ship crewmen and passengers, stealing valuable cargo and leaving destruction in his wake. It was noted that several of those who helped to suppress him afterwards went a-pirating themselves.

During the late 1700s and early 1800s, seaborne bandits from Tripoli, Tunis, and Algiers frequently raided American ships off the Mediterranean's Barbary Coast. It had become routine US practice to negotiate with these pirates and to pay the huge ransoms they demanded. By 1801 the United States had paid over $2 million in this manner, or over onefifth of the US annual revenue at the time.1 President Thomas Jefferson finally put a stop to this with an early version of our current no-concessions policy, by refusing ransom demands of the Barbary pirates. Stephen Decatur was sent on missions to North Africa to end the depredations of the pirates infesting that region and to demand reparations of the rulers of Algiers, Tunis, and Tripoli, who permitted or encouraged the piracy.

Pirates were low-life robbers on the high seas who attacked one and all with equal fervor; and they did not share their spoils with monarchs. Buccaneers, by dictionary definition, were freebooters only preying upon Spanish ships and settlements, especially in the West Indies in the 17th century. The term buccaneers was originally used to designate French settlers in Haiti (sailors who'd jumped ship in many cases) who hunted wild cattle and swine and dried the meat (buccan) to sell to passing ships.

Buccaneers were encouraged by the English crown to plunder Spanish ships; the crown receiving its portion of the booty. Fort San Lorenzo was built in Panama in the late 1500s, by the command of Phillip II of Spain, to defend the wealth of gold and silver from Peru that crossed the isthmus each year. After an heroic defense by the Spanish garrison, the fort was captured and burned in 1670 by an advance party of the English pirate Henry Morgan. Morgan then went on to sack and destroy Panama City. Buccaneer Harry Morgan did such a fine job that he served as acting governor of Jamaica and was knighted! Various English captains found the islands in the Bay of Panama to be both a natural defense site and a refuge. English pirates, such as Sir Francis Drake, Captain Cook and Henry Morgan, after raiding Spanish galleons hid out on Perico or Taboga Islands, Taboga being "that favorite anchorage of buccaneers."

Letters of Marque and Reprisal

The distinction between a pirate and a privateer is a fine one separated by a thin letter of marque. Privateers on the high seas had a legal standing in international law and were widely used by nations through the 1800s to bolster their maritime forces. These ships were defined as "vessels belonging to private owners, and sailing under a commission of war empowering the person to whom it is granted to carry out all forms of hostility which are permissible at sea by the usages of war." Granting such a commission was a relatively easy method for a sovereign to rapidly expand maritime power in time of war.

Privateers were granted their right to wage war through the issue of "letters of marque and reprisal." Under Article. I. Section. 8. Clause 11: of the United States Constitution [1787] the US Congress is granted power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" The authority to grant letters of marque and reprisal is distinguished from the power to declare war by the fact that the two powers are laid down separately-if in the same clause. Thomas Jefferson explained the significance of issuing letters of marque and reprisal: "The making of a reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede, and when reprisal follows, it is considered an act of war."

The right to use such vessels in maritime war was recognized by international law; their employment was necessary till states established permanent public navies; their use since that time has been claimed to be advantageous to states having small navies, because it enables them to increase their naval force in a short time, and at a small cost, and thus tends to prevent a state, with a powerful navy, from having an undue advantage over another state whose marine is mainly commercial.

In war all captives vest originally in the state, and the commission which alone gave privateers a legal interest in a valid prize must be kept on board of their vessel. Sailing under a commission from each of two belligerent states was considered piratical. Acting under two or more commissions granted by allied states against a common enemy is irregular, but not piratical. The persons to whom, whether aliens or citizens, and the conditions upon which, states issue letters of marque, varied with their municipal laws. Persons applying for such letters were usually required to give large bonds that they would conform to the usages of war, obey the instructions of the granting state, observe the rights of neutrals, and bring into port, except in cases of overwhelming necessity, all captures for adjudication by a prize court.

Where, as in the United States, no positive municipal law existed upon the subject, the general rule was that the owners and officers of privateers were liable in damages for illegal conduct, when admittedly engaged in privateering beyond the amount of security given, and that the measures of damages is the value of the property unlawfully injured or destroyed.

As dawn broke over Machias Bay, Maine, on June 12, 1775, forty men armed with guns, swords, axes and pitchforks and led by a revolutionary firebrand named Jeremiah O'Brien brought their private sloop, Unity, quietly around the lee side of Round Island. Their target, the British armed schooner Margaretta, immediately attempted to fire on the unarmed Unity, but Unity was too close. O'Brien commanded his crew to ram the British ship, boarding and engaging in hand-to-hand combat. By the end of an hour, the British captain was mortally wounded, and the British ship had surrendered. O'Brien and the Unity crew claimed four double fortified three-pounders, fourteen swivel guns and several smaller guns. Unity had become a warship for the soon to be proclaimed United States of America in this first sea engagement of the Revolutionary War.

The 13 American colonies, after declaring their independence from Britain, had only 31 ships in the Continental Navy at the onset of the American Revolutionary War, and a total of 64 ships at the height of that war. To add to this number, the government issued Letters of Marquee to privately owned, armed merchant ships and commissions for privateers , which the government outfitted as warships to prey on British merchant ships. During the Revolution, the privateers had almost 1,700 ships, a total of 14,872 guns (cannons), and they captured 2,283 enemy ships. In comparison, the ships in the Continental Navy had a total of 1,246 guns (cannons) and they captured 196 enemy ships.

In 1812 privateers not only ravaged England's commerce, bnt shocked the British sense as it had never been shocked before by repeated victories in duels between cruisers of equal rate. Commodore Porter did what all the cruisers of France had not been able to do, when he destroyed the British whale fishery in the Pacific. He lost his ship in battle against a snperior force, it is true, but not until 110 more British whaleships were left for him to destroy. Johnston Blakeley, in the New Wasp of eighteen guns, cruised right in the chops of the Channel, often in sight of the English shore, and sunk two British men-of-war of his own class, besides destroying many merchantmen and sending at least one valuable prize home. Warrington in the Peacock, and Biddle in the Hornet, eighteen-gun sloops, made similar cruises in the East Indies and off the African coast.

The Declaration of Paris of 1856

The disadvantages of using privateers are, that, their services being obtained by allowing their owners to appropriate to themselves and to their crews the whole or a part of the vessels or other property they may capture, and their officers and crews not being under naval discipline, the desire of prize tends to lead both officers and crews beyond the limits of legitimate war, to produce disregard of the rights of neutrals, and to continue lawlessness after the return of peace.

These evils, the rapid growth of neutral interests, and the increasing difficulty of fitting out vessels, by private means, suited to the conditions of modern maritime war, have led, during the 19th Century, to repeated efforts to abolish privateering. In 1785 a treaty between the United States and Prussia, negotiated by Franklin, bound the contracting states, in case hostilities arose between them, not to use privateers. In 1792 the French assembly agreed to suppress privateering, but without effect. In 1823 the United States unsuccessfully tried to secure the same object by treaties with Great Britain, France and Russia. In the Mexican war the United States issued no letters of marque, and although Mexico issued such letters, they were not taken by foreigners, because municipal laws or treaties forbade.

In the Crimean war neither of the belligerents issued letters of marque. At the close of this war the principal states of Europe, concluded that private armed ships, maintained at private cost for private gain, and often necessarily for a long time beyond the reach of the regular naval force of the state, could not be kept under proper control.

The Declaration Respecting Maritime War (sometimes known as the Declaration of Paris of 1856), abolished privateering. The first article of the declaration reads: "Privateering is and remains abolished." The Declaration of Paris officially recognized privateer as a new category of international criminals, no different from pirates pursuing private war for private ends. The negotiations had been convened in Paris at the suggestion of Count Walewski, the French plenipotentiary. Adopted on April 16, 1856, this treaty established maritime law among the major powers of Europe. It declared neutrality of neutral countries' vessels and seaborne goods. The treaty also prescribed sufficient force to enforce a maritime blockade. Until the mid-19th century, the law of war, though increasingly developed, remained largely in the realm of custom. It was not until 1856 that states made the first multilateral attempt to codify in times of peace rules which were to be applicable in the event of war. This declaration bound only its signataries when at war with each other, and lefts them free to use privateers when at war with other states.

The United States, on the other hand, did not sign this Declaration, with various reasons being aduced. The United States declined the new neutral immunities because they will not surrender privateering. The power of employing its own and foreign ships as privateers had made the American Union a very formidable belligerent in the War of 1812. It was also against its tradition avoiding entangling [European] alliances. The United States government declined to sign the declaration on the ground that, not possessing a great navy, they would be obliged in time of war to rely largely upon merchant ships commissioned as war vessels, and that therefore the abolition of privateering wourd be entirely in favor of European powers, whose large navies rendered them practically independent of such aid.

The United States declined to sign because the Declaration's provisions fell short of complete immunity for all private vessels, including those of belligerents. The proposal of the American Government to give up privateers on condition of exempting all private property from capture was not adopted by the other Signatories. The United States had agreed to become a party to the declaration if its signataries would amend it by adding a provision protecting from capture all private property at sea, not contraband. This proposition, called the "Marcy" or "American" amendment, not being accepted by the signataries, was withdrawn in 1857.

The Declaration codified a fundamental shift in the balance of interests between warfare and trade on the high seas. The benefit of the doubt shifted from the one to the other. It did so at a time when the globalization of world commerce was altering the strategic landscape in ways whose implications were decidedly puzzling for those who favored the advance of liberty in politics. If war persisted, then at least it would be reduced to a duel between Governments and their professional fighters. In a war in which aggression is kept on the old footing by the powers of armament which privateering gives, the Power which had most property at sea was most injured. The old law took for granted the equality not only of naval strength among states, but in volume of trade and of property risked.

Persistent American Privateering

Privateering may have been abolished by the 1856 Declaration of Paris, but, during the Civil War, Union blockaders were granted monetary awards. By the time of the American Civil War, the days of paper blockades were over; and, though the United States were not a party to the Declaration of Paris, its rule in regard to blockade was only the formal expression of a law universally recognized. Blockades, to be binding, must be effective -- that is to say, maintained by a force sufficient really to prevent; access to the coast of the enemy; or, according to the general interpretation given to the treaty, sufficient to create an evident danger in entering or leaving the tort. In this sense, the Federal Government understood its responsibilities and prepared to meet them.

In 1861, Great Britain unsuccessfully sought to induce the Confederacy to accede to the Declaration of Paris. The United States offered to accede unconditionally to the Declaration of Paris, hoping to obtain an international right to treat Confederate privateers as pirates. Great Britain, having accorded the character of belligerents to the Confederate States, had practically recognized their right to employ privateers. The offer of the United States was thus declined, unless the United States would admit that its signature should not have "any bearing, direct or indirect, on the internal differences (now) prevailing in the United States." This attempted restriction by one state of a declaration of so general and permanent a character, and to which so many states were parties, was not acceptable to the United States, and its accession to the Declaration of Paris was not made.

The Confederate States offered letters of marque to subjects of all countries, and the Congress of the United States authorized the President to issue letters of marque. But no avowedly foreign private armed vessels took letters of marque from the Confederacy, and the ostensibly Confederate vessels were commissioned as of its regular navy. The President of United States did not make use of his power to issue letters of marque.

The revenue cutter William Aiken, also referred to as simply Aiken, began service as a Charleston, South Carolina, pilot boat named the Eclipse. She was purchased by the Revenue Service from Hugh Vincent of that city for $4,500 in 1855. She was renamed William Aiken. She was surrendered to the state authorities of South Carolina by her commanding officer, Revenue Captain N. L. Coste. She was the first Federal vessel taken by the seceding states (South Carolina had moved to secede 20 December 1860). The Confederate Navy found her to be unseaworthy and the State put her up for sale. She was sold by the State to Henry Buist, Maier Triest and eight other Charlestonians, who were issued a letter of marque, 10 July 1861 at Charleston. Petrel's life as a privateer was short: off her home port on her first cruise, 28 July 1861, she was overhauled and sunk by USS St. Lawrence, after a four-hour chase.

Of the property afloat, destroyed or captured during the Civil War, the larger part sufferedd in consequence of the blockade. The number of prizes brought in during the war was 1,149, of which 210 were steamers. There were also 355 vessels burned, sunk, driven on shore, or otherwise destroyed, of which 85 were steamers; making a total of 1,504 vessels of all classes. The valule of these vesselrs and their cargoes, according to a low estimate, was thirty-one million dollars. In the War of 1812, which has always, and justly, been regarded as a successful naval war, the number of captures was 1,719. But the War of 1812 was waged against a commercial nation, and the number of vessels open to capture was therefore far greater. In the earlier war, out of the whole number of captures, 1,428 were made by privateers, which were fitted out chiefly as a commercial adventure. In the Civil War the work was done wholly by the Navy.

Privateering Around the World

During the Franco-German war, in 1870, a royal decree of Prussia ordered the creation of a volunteer navy. The owners of vessels were invited to fit them out for attack on French ships of war; bounties were offered; the crews were to be under naval discipline, but they were to be furnished by the owners of the ships; the officers were not be regular naval officers. The French government protested against the use of such a volunteer navy as an evasion of the engagement not to employ privateers, by which Prussia was bound by the Declaration of Paris. The sole real difference discoverable between privateers and such a volunteer navy is, that the latter is under naval discipline.

While negotiated initially by only seven states [Austria, France, Prussia, Russia, Sardinia, Turkey, and the United Kingdom], most sea powers later acceded to this multilateral declaration. By the 1880s all the important states in Europe and the Americas had become signataries of the declaration of Paris, except the United States, Spain and Mexico.

Treaties of varying duration had been made, and some of them by the United States, with France, Holland, Sweden, Prussia, Great Britain, Spain, and Colombia, which forbid the citizens or subjects of either contracting state, while they are at peace, to accept letters of marque from a third state, at war with the other contracting state. Municipal laws often prohibit the citizens or subjects over whom they are set from taking privateering commissions from a foreign state. Thus, the laws of both Great Britain and the United States imposed severe penalties on citizens or residents who accept commissions, equip privateers or enlist men for service in any foreign war.

Privateering and the Spanish-American War

Although the United States and Spain were not parties to the Declaration of Paris, both, during the Spanish-American War, observed its principles. The Spanish government, however, expressly gave notice that it reserved its right to issue letters of marque. At the same time both belligerents organized services of auxiliary cruisers composed of merchant ships under the command of naval officers.

On 26 April 1898 President of the United States William McKinley issued a proclamation which read in part: " ... it is declared that war exists and that war has existed since the 21st day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain; and whereas, it being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of this Government will be not to resort to privateering, but to adhere to the rules of the declaration of Paris ... "

Notable expansion of presidential power in the field of executive treaty-making first became manifest in the administration of President McKinley. At the outset of war with Spain, when the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, this course, as Professor Wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars."

During the Spanish-American War the Spanish government issued in 1898 a decree declaring that captains, masters and officers of vessels, which, as well as two-thirds of their crew, are not American, captured while committing acts of war against Spain, would be regarded and judged as pirates even if they are provided with letters of marque issued by the United States. This was not in accordance with the international practice on the subject. A public ship or one which is entitled to fly the flag of a belligerent and navigates under the cover of state papers, by the very sense of the term, is not a pirate.

The use of prize money as an incentive was abolished by the US Congress in 1899. Under 34 USC 1151 R.S. 4630 provided that in some circumstances the captors were to receive the net proceeds of prize property and in other circumstances they were to receive half and the United States was to receive the other half. The Act of March 3, 1899, ch. 413, § 13, 30 Stat. 1007, repealed "all provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize". Thus the only part of R.S. 4630 that remains in effect, as is indicated in 34 U.S.C. 1151, is that part which provides that proceeds shall be decreed to the United States.

During the Russo-Japanese War, the word piracy was freely applied in British newspapers to the seizure of the Malacca and other vessels held up by the Peterburg and Smolensk, two cruisers belonging to the Russian Black Sea volunteer fleet, which in July 1904 passed as merchantmen through the Bosporus and Dardanelles and were transformed to their real character on the open sea. The application of the term in this case was quite inaccurate.

Second Hague Conference in 1907

Privateers stand in a position between that of a public ship of war and a merchant vessel, and the raising of merchant vessels to the status of warships has in recent wars given rise to so much difficulty in distinguishing between volunteer war-ships and privateers that the subject was made one of those for settlement by the Second Hague Conference in 1907. The use of organized services of auxiliary cruisers composed of merchant ships under the command of naval officers might operate as a veiled revival of the forbidden practice of privateering. This ceased to be a matter of much importance, the Hague Conference having adopted a series of rules on the subject which may be said to interpret the first of the four principles of the Declaration of Paris with such precision as to take its place.

The Convention on the subject (18 October 1907) set out that, in view of the incorporation in time of war of merchant vessels in combatant fleets, it was desirable to define the conditions under which this can be effected. In connection with the conversion of the Peterburg and Smolensk on. the high seas during the Russo-Japanese War, and the ruse by which they came through the Bosporus and the Dardanelles, it was agreed, after a vain attempt to solve the question in a way satisfactory to all parties, that the subject of whether the conversion may take place upon the high seas should remain outside the scope of the convention. Mevertheless, the contracting powers, not having been able to come to an understanding on the question whether the transformation of a merchant ship into a war vessel may take place on the high sea, were agreed that the question of the place of transformation was in no way affected by the rules adopted.

Under the 1907 Convention, no merchant ship transformed into a war vessel can have the rights and obligations attaching to this condition unless it is placed under the direct authority, the immediate control and the responsibility of the power whose flag it carries. Merchant ships transformed into war vessels must bear the distinctive external signs of war vessels of their nationality. The officer commanding must be in the service of the state, and properly commissioned by the competent authorities. His name must appear in the list of officers of the combatant fleet. The crew must be subject to the rules of military discipline. Art. v. Every merchant ship transformed into a war vessel is bound to conform, in its operation, to the laws and customs of war. And the belligerent who transforms a merchant ship into a war vessel must, as soon as possible, mention this transformation on the list of vessels belonging to its combatant fleet.

The Declaration of London in 1909 further amplified the principles of the Paris declaration. The concepts of both treaties were sound when drafted during a more gentlemanly era of naval warfare. Prior to the Great War, American navalists like Mahan had come to regard war against commerce as an unprofitable diversion of naval forces. In World War I the Allied blockade of Germany, and Germany's unrestricted submarine warfare, led to a different conclusion.

Q-Ships

When the U-boats [German submarines] were at their worst in World War I, the British Admiralty approved and authorized the conversion of merchant vessels to heavily armed raiders which would have her guns disguised or concealed in such a way that the merchant vessels might serve as decoys which would encourage U-boats to attack them. Then, provided the disguised merchant vessel had been given sufficient buoyancy, so that one or two torpedoes would be unable to sink her, the disguise was to be thrown off, the guns brought to bear, the U-boat sunk. The entire effectiveness of the enterprise depended on the successful use of surprise, and once the U-boats were aware of the ruse, the chances of success were so greatly reduced that only a few ingenious Commanding Officers were able to conduct Q-ship campaigns throughout the remainder of World War I with any distinction. Q-boats accounted for many submarines which slipped up on them thinking they were easy prey. When the submarines came into range, false structures on the Q-boats were collapsed, revealing an array of guns. The defeat of the U-Boats was not because the guerre de course (independent commerce raiding) could not by its nature be decisive: it was because the Allies were able to be strong everywhere and make a gigantic effort.

In World War II, the appearance of U-boats in Atlantic coastal waters led to considerations of all possible means for meeting the emergency. A number of American and British ships were fitted out as a "Q" ship, whose appearance as helpless freighters was expected to lure German submarines into range of their concealed battery of guns and depth charges. Their guns and depth charge throwers were concealed, identifying numbers removed from the bows, commission pennants hauled down, and other steps taken to present the appearance of merchantmen. Enemy submarines had been attacking during darkness; that they were rarely seen until after the vessel was struck by a torpedo. The identity of these vessels must remain secret until action was joined. Action would be joined only when enenemy submarine was at sufficiently close quarters to insure its destruction by superior gunfire, followed by depth charge attacks if it succeeded in submerging before destruction. It appeared that the Germans were well aware of Q-ship possibilities; that the element of surprise which had made this type of vessel effective against submarines in World War I had been so completely lost that the Q-ship had become something of an anachronism. Nevertheless, the plan was continued.