Support The Bulwark and subscribe today.
  Join Now

Let’s Not Revive Privateering to Take Russian Superyachts

Leave it in the 19th century.
March 5, 2022
Let’s Not Revive Privateering to Take Russian Superyachts
'Eclipse,' one of the largest yachts in the world, photographed in 2013. Russian billionaire Roman Abramovich has owned it since 2010. (Photo by Spencer Platt / Getty)

Earlier this week, Rep. Lance Gooden (R-Tx.), eager to help Ukraine, proposed a bill to revive privateering, the Age of Sail practice in which governments commissioned privately owned vessels to attack enemies. “Corrupt Russian oligarchs have enabled Putin’s war,” he tweeted on Monday. So their mega-yachts and private planes should be fair game to capture by intrepid Americans, protected by a U.S. letter of marque that would make their seizures legal.

Privateering is mentioned in the Constitution, in Article II, Section 8, which empowers Congress “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Students of early America will remember how the United States deployed privateers throughout its early wars. But Gooden’s proposal marries constitutional cleverness to a superficial understanding of history—usually a recipe for trouble.

Gooden isn’t the only member of Congress in this century to see privateering as an old way to meet new challenges. In the wake of 9/11, Ron Paul introduced the “September 11 Marque and Reprisal Act of 2001” to fight terrorists; later he offered the “Marque and Reprisal Act of 2007” targeting Osama bin Laden and al Qaeda. Security experts have also recommended letters of marque to fight cyber piracy, an idea Jonah Goldberg likes.

These proposals have in common a misunderstanding of the legal framework and financial incentives that made Age of Sail privateering work. It’s the whole context we need to consider, not just one aspect of war at sea mentioned in the Constitution.

Gooden’s bill, for example, seems premised on the idea that because privateering is done by private individuals rather than uniformed military it is not an act of war. But privateering was always the act of one belligerent against another. There was no such thing as a “neutral privateer.”

The United States has commissioned privateers in undeclared wars, such as the Quasi-War with France (1798–1800), when French and American vessels battled at sea following an affront to American diplomats. But that conflict was what legal theorists called an “imperfect war” or an undeclared war limited in scope. A perfect war, by contrast, was a declared war that called out all possible war-making capabilities. Imperfect war, though, was still always war, as the Supreme Court affirmed for the Quasi-War in Bas v. Tingy (1800).

For all the justified American anger over Putin’s invasion of Ukraine, and all the responses by private companies and individuals, the United States is not at war with Russia. Officially, we are neutral. That status could change quickly if the United States acts like a belligerent by doing things like issuing letters of marque. Gooden insists his bill is about “finding creative ways to do so [i.e., to seize the oligarch’s vessels] without escalating the current conflict,” as he told the Washington Post. The risk, though, is that the actions would be considered by the adversary to be acts of an undeclared war.

Modern privateering enthusiasts also misunderstand how admiralty law was essential to the financial incentives of privateering. Privateers got to keep what they captured only after submitting to a legal proceeding in an admiralty court, full of the usual legal paperwork and procedures: filings, arguments, and testimony of captains and crews.

Over the eighteenth and nineteenth centuries, a vast body of law developed to regulate all aspects of privateering, including such questions as who could receive a commission and what made commissions legitimate; what privateers could capture; where they could have their cases heard; and the innumerable complexities of trade and war at sea.

Privateers are often called “legal pirates,” but that’s not helpful. Successful privateering was part seamanship, part lawyering. If the lawyers did their job, a court would transfer title to the vessel and all property aboard (sometimes including enslaved people) to the privateer captors.

That’s the most important point: privateers profited not simply by capturing a rich prize but by getting legal title to it. They could then resell what they captured, fetching a good price because buyers had confidence that they now had legal title to what they’d purchased. The original owners could not come back and sue to reclaim a vessel and goods properly adjudicated by a court.

Gooden’s bill hints at establishing some legal apparatus for regulating modern privateers. He says the president should furnish the recipients of commissions with “suitable instructions,” and he calls for them to post a bond to ensure good behavior. Instructions, a formal prize code, and posting bond when accepting a commission were all part of Age of Sail privateering.

The problem, however, is that we no longer have the same robust understanding of prize law. We can’t just resurrect one aspect of privateering—the letters of marque—without updating all the case law that surrounded it, including the status of privateering in international law. It was abolished at the end of the Crimean War by the 1856 Declaration of Paris. Though the United States never signed on, many other countries, including Russia, did.

The lack of international law status for privateering would have direct impact on the legitimacy of any title transferred by U.S. courts to a privateer. After capturing a $100 million Russian yacht, the successful privateers are presumably going to want to sell it. But it will be tough to find buyers if they couldn’t be sure the old oligarch won’t find a court to challenge the validity of issuing commissions in the first place.

Gooden understands it’s more complicated than his first tweet suggested. “I think there are legal questions about transfer of ownership and compensation that can be addressed by the executive branch and the courts later,” he told the Post. But these are hardly side issues to settle later. Transfer of ownership was the central facet of privateering. If you can’t do that with certainty, no privateer would want to set sail.

Privateering was never just about commissions and booty. It operated within a legal framework that aligned private self-interest to a belligerent state’s military aims within an international system that supported privateering. That’s not the world we live in.

Privateering is a tool that should remain in the nineteenth century where it was last used and not get dusted off—or a renewed conflict with Russia might be the result.