The rise, fall and rise again of privateers.

• Author: Tabarrok, Alexander

In August 1812, the Hopewell, a 346-ton ship laden with sugar, molasses, cotton, coffee, and cocoa, set sail from the Dutch colony of Surinam. Her captain was pleased because he reckoned that in London the cargo would sell for 40,000 £--the equivalent of at least several million dollars in today's economy. (1) The Hopewell carried fourteen guns and a crew of twenty-five, and for protection she sailed in a squadron of five other vessels. It was difficult, however, to keep a squadron together in the vast expanse of the Atlantic Ocean, and on August 13 the Hopewell became separated from her sisters.

Two days later her crew spotted another ship, armed and approaching rapidly. At three hundred yards, the approaching schooner fired a round off the Hopewell's bow and called for her to present her papers and prepare to be boarded, but the captain was not about to give up his cargo so easily, and he opened fire. A hail of musket and cannon balls tore into the Hopewell in return. Broadside after broadside was exchanged as the more nimble adversary bore down repeatedly. At last, the Hopewell could fight no longer, and her captain ordered the flag to be struck.

The attacker, an American schooner out of Baltimore, was neither a pirate ship nor a ship of the U.S. Navy, then next to nonexistent. In fact, it is best to think of the Comet not as a ship at all, but as a business enterprise. The Comet's owners and its crew, from Captain Thomas Boyle down to the lowliest cabin boy, were hunting the Atlantic for prizes: British commercial ships to be captured, condemned, and sold for profit. Piracy? Not at all. The Comet was a privateer, a ship licensed by the United States, then at war with Great Britain, to harass British vessels and confiscate their cargoes. The privateer's license was no mere formality. Without the license and a legal proceeding, the privateer could not sell its prizes legally. More important, courts throughout the world recognized a privateer's license as valid. Pirates, in contrast, were barbarians and operated outside the rule of law; if caught, they would be hanged. Even the British, then the enemy, recognized that a privateer acted within the law of nations, and its captain and crew, if captured, would be accorded the same rights as captured officers and crew of the U.S. Navy.

Students of the U.S. Constitution will remember the peculiar phrase used in Article 1, section 8, that gives Congress the power to "grant letters of marque and reprisal." A clue to the phrase's meaning and a sign of its importance may be surmised from the power granted immediately prior to it in the Constitution: Congress's power "to declare war."

Letters of marque and reprisal, granted as early as the twelfth century, were designed to bring the anarchy of retaliation under the rule of law. A merchant whose property had been stolen could apply to his sovereign for a permit to take limited actions for the purpose of restitution, not revenge, against specified agents. A private cause of action was initially required, but in wartime sovereigns began to issue letters of marque and reprisal that were good against any enemy ship. Thus, private means were used to wage public wars.

Public navies were expensive, especially because they had to be maintained in peacetime as well as in wartime, and, until the late nineteenth century, tax systems tended to be ineffectual and inefficient. Governments, therefore, sometimes relied heavily on private initiative and enterprise to fight their wars. With a few extra cannon and men, a merchant vessel could be converted into a commissioned vessel capable of capturing small prizes should any cross its trading route. The more adventurous might build ships solely for the purpose of capturing prizes. The merchant vessels went on "voyages"; the commissioned vessels "cruised" and became known as privateers. The great era of Elizabethan exploration and expansion, for example, was financed and run by privateers. Sir Francis Drake, Sir Martin Frobisher, and Sir Walter Raleigh all operated as privateers with the Crown as partner.

Privateering played a critical role in the American Revolution, with approximately seven hundred commissioned ships, compared to approximately one hundred ships in the U.S. Navy (Stivers 1975; U.S. Maritime Service Veterans 2005). Thomas Paine owned stock in privateers (Chidsey 1962, 44), as did General George Washington (Garitee 1977, 17). Benjamin Franklin did not own such stock, but he went to great lengths to commission privateers in France. He wanted to secure the release of American soldiers held in British prisons, but because the American military captured few prisoners, he had little with which to barter. Privateers provided a ready supply of prisoners for exchange.

The apogee of the privateering system undoubtedly occurred during the War of 1812. Both the British and the Americans used privateers, and the system was quite similar. Here, I focus on the American system.

On June 18, 1812, Congress declared

that war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their Territories; and that the President of the United States is herby authorized to use the whole land and naval force of the United States to carry the same into effect, and to issue to private armed vessels of the United States commissions of marque and general reprisal, in such forms as he shall think proper, and under the seal of the United States, against the vessels, goods, and effects of the Government of the said United Kingdom of Great Britain and Ireland, and the subjects thereof. (2) The privateers were ready. The Comet, for example, was owned by a group of wealthy Baltimore investors who had anticipated the war. Commissioned on June 29, just eleven days after the declaration of war, this ship cleared Baltimore's harbor along with several other privateers on July 12, and it captured its first prize on July 26 (Garitee 1977, 150). Thus, in less than thirty days a fleet of cruisers was launched from the U.S. coast ready to harass and imperil the British commercial fleet throughout the Western world. (3) The privateers' entreprenerial foresight stands in sharp contrast to that of the U.S. Navy. As the war began, the navy had just eight seaworthy ships (Chidsey 1962, 89).

On June 26, 1812, Congress followed up its declaration of war with greater detail on how privateers would be regulated. (4) In doing so, they and the president, who added to the regulations, drew on hundreds of years of legal evolution and experience.

When a privateer captured a large, valuable prize, such as the Hopewell, the captured vessel would be manned with a prize master and crew and given instructions to set sail for the nearest friendly port. On reaching port, the cargo and ship could not be legally disturbed (no "breaking bulk") or sold before the property had been properly "condemned" in a court of law. To condemn a vessel, the privateer had to prove that the enemy owned it. To prove ownership, the privateers relied on the prize's own papers, including registers, cargo manifests, clearance certificates, and so forth. The prize's officers, crew, and passengers were also questioned. If the prize was found to be lawful, it was sold at a court-ordered auction. Congress stipulated, however, that the court "shall and may decree restitution, in whole or in part, when the capture shall have been made without just cause. And if made without probable cause, or otherwise unreasonably, may order and decree damages and cost of life to the party injured, and for which the owners and commanders of the vessels making such capture, and also the vessel shall be liable." (5)

In wartime, the courts are likely to be biased toward home-country plaintiffs or defendants, but, as Samuel Johnson might have remarked, it is a wonder that the courts were resorted to at all. In fact, they were surprisingly judicious toward enemy vessels and their owners. For example, a court declared the first two American prizes in the War of 1812 to be invalid because their skippers had not yet had the chance to learn of the state of war (Chidsey 1962, 88). (6) The remarkable institutions of ransom and parole also illustrate how the law and custom of the seas regulated privateering.

Not all prizes were as valuable as the Hopewell. A smart captain such as...