Letter of Marque - Early History

Early History

During the Middle Ages, armed private vessels enjoying their sovereign's tacit consent, if not always an explicit formal commission, regularly raided shipping of other nations, as in the case of Francis Drake's attacks on Spanish shipping, of which Elizabeth I (despite protestations of innocence) took a share. Grotius's 1604 seminal work on international law, De Iure Praedae (Of The Law of Prize and Booty), was an advocate's brief defending Dutch raids on Spanish and Portuguese shipping.

King Henry III of England first issued what later became known as privateering commissions in 1243. These early licences were granted to specific individuals to seize the king’s enemies at sea in return for splitting the proceeds between the privateers and the crown.

The letter of marque and reprisal first arose in 1295, 50 years after wartime privateer licenses were first issued. According to Grotius, letters of marque and reprisal were akin to a "private war", a concept alien to modern sensibilities but related to an age when the ocean was lawless and all merchant vessels sailed armed for self-defense. A reprisal involved seeking the sovereign's permission to exact private retribution against some foreign prince or subject. The earliest instance of a licensed reprisal recorded in England was in the year 1295 under the reign of Edward I. The notion of reprisal, and behind it that just war involved avenging a wrong, clung to the letter of marque until 1620 in England, in that to apply for one a shipowner had to submit to the Admiralty Court an estimate of actual losses.

Licensing privateers during wartime became widespread in Europe by the 16th Century, when most countries began to enact laws regulating the granting of letters of marque and reprisal.

Although privateering commissions and letters of marque were originally distinct legal concepts, such distinctions became purely technical by the eighteenth century. The United States Constitution, for instance, states that "The Congress shall have Power To ... grant Letters of marque and reprisal ...”, without separately addressing privateer commissions.

During the Napoleonic Wars and the War of 1812, it was common to distinguish verbally between privateers (also known as private ships of war) on the one hand, and armed merchantmen, which were referred to as "letters of marque", on the other, though both received the same commission. The Sir John Sherbrooke (Halifax) was a privateer; the Sir John Sherbrooke (Saint John) was an armed merchantman. The East India Company arranged for letters of marque for its East Indiamen such as the Lord Nelson, not so that they could carry cannons to fend off warships, privateers, and pirates on their voyages to India and China—that they could do without permission—but so that, should they have the opportunity to take a prize, they could do so without being guilty of piracy. Similarly, the Earl of Mornington, an East India Company packet ship of only six guns, too carried a letter of marque.

In July 1793, the East Indiamen Royal Charlotte, Triton, and Warley participated in the capture of Pondicherry by maintaining a blockade of the port. Afterwards, as they were on their way to China, the same three East Indiamen participated in an action in the Straits of Malacca. They came upon a French frigate, with some six or seven of her prizes, replenishing her water casks ashore. The three British vessels immediately gave chase. The frigate fled towards the Sunda Strait. The Indiamen were able to catch up with a number of the prizes, and, after a few cannon shots, were able to retake them. Had they not carried letters of marque, such behavior might well have qualified as piracy. Similarly, on 10 November 1800 the East Indiaman Phoenix captured the French privateer General Malartic, an action made legal by a letter of marque.