To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. -the enumerated powers of Congress, Art. 1, Sec. 8, Para. 11 of the US Constitution.
This is cool. When discussing the Letter of Marque and Reprisal portion of the war clause, the capture clause is always forgotten. But for privateering, the capture clause was very important. It gave congress the right to establish the rules and laws for the capture of enemy vessels or prizes, and for the capture of combatants. That last part about the capturing of combatants is what has been falsely interpreted over the years and forgotten, and Mr. Simowitz has done a great job of disputing this false interpretation.
The reason why this is important to discuss is that like in the past, prisoners are very much a part of conflicts on land or water today, and if private industry is to be involved in such ventures, there must be rules and laws in place that dictate what is to be done with prisoners. Especially on water, just because armed guards on boats are big thing right now. The big one here is the legal capture, detention and treatment of prisoners, and of course, the costs of capture, detention and transport of prisoners. Private industry must be compensated and incentivized, or else taking prisoners will not be a priority. (hence why Congress dedicated funding for captures/bounties during wars like the one in 1812)
I have talked about offense industry in prior posts, and the key to this concept is to create a mechanism in which private industry profits from the destruction of the enemy. Well profiting from the ‘capture’ of enemies is included in that mechanism because the act takes combatants off the battlefield. You can see shades of that in today’s modern bailbondsmen industry as well.
And if there are specific rules and laws on how captures are to be done, then those captures could be recognized by a prize court or current court of law as legal. If a bounty or fees associated with the capture/detention is to be awarded, a court of law must be satisfied that it was legally conducted. As of right now, there are no laws or rules for private industry to use for the capture/detention of pirates. Yet states could easily provide such a thing via their right to grant a license or Letter of Marque to private industry.
Now lets discuss today’s modern piracy problem. We are well on our way to creating a vibrant ‘defense industry’; one in which there is no mechanism in place to reduce the numbers of pirates other than to kill them during times of self defense. This is an odd arrangement that we have, where we allow armed guards to take the life of a pirate during combat, but we do not give them the legal authority necessary to capture that pirate? Or what about the rules for when a pirate surrenders or we have wounded that pirate or destroyed their vessel during a battle, thus leaving them stranded in the ocean?
Sure, a company could contact a naval force nearby and give them a GPS coordinate of the position of that pirate vessel, but what about those companies who could care less about such things? Or maybe those companies are getting strict guidelines that they are not to stop or deal with any kind of pirate detention. And for those companies that do bring pirates on board that surrendered or were stranded, then who will pay those companies for the effort? That is what boggles the mind right now, and there are no laws or rules for capture or detention. Oh but we can shoot at the pirates all day long…..
So this is what I am trying to do here. We need a serious discussion about the ‘rules concerning captures on land or water’, and how that could apply to private industry and their current task out there on the high seas. The US Constitution is a great starting point for that discussion, as well as the history of privateers and the rules for capture they followed in the past. The War of 1812 is just one historical example, and our forefathers had a greater understanding and appreciation for the issue than our modern legal councils. And if you think about, our forefathers were more humane, just because they had a legal means of private industry removing combatants off the battlefield, other than just killing them.
Either way, check it out, pass it around, chew on it for a bit, and understand that we can learn a lot from the past about how to use private industry during times of war. -Matt
The Original Understandings of the Capture Clause
Aaron D. Simowitz
Gibson, Dunn & Crutcher LLP
March 12, 2008
Abstract:
The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.
Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a hundred and eighteen cases before it was dissolved by Article III of the Constitution.The federal government, first under the Articles of Confederation and then under the Constitution, was responsible for prescribing the rules under which enemy ships and prisoners could be taken. The value of captured ships was the chief means by which the early navy and privateer system was financed. However, the early law of capture also concerned captured persons, who could sometimes be redeemed or ransomed for head money. Later scholars have correctly concluded the capture of property was more important to the Framers of the Constitution. However, they have also assumed that the Capture Clause did not cover people. This is not the case.
This paper will show that the received wisdom that the Capture Clause covers only property is based on a faulty and possibly disingenuous statement dating from 1833. This paper will also show that the received wisdom is inconsistent with the era’s admiralty law and with Congressional practice. The Framers made prescribing rules concerning captures on land and water an enumerated power of Congress. This power covered enemy persons as well as property.
Link to paper here.
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Shortly before the War of 1812 broke out, Congress passed the latest version of “An Act Concerning Letters of Marque, Prizes, and Prize Goods.” Section seven of the Act, enacted pursuant to Congress quasi-war powers, provided, “[t]hat all prisoners found on board any captured vessel, or on board any recaptured vessel, shall be reported to the collector of the port in the United States in which they shall first arrive, and shall be delivered into the custody of the marshal of the district . . . who shall take charge of their safe keeping.” Section nine of the same act provided a bounty of twenty dollars for each enemy killed in the event that the enemy vessel was destroyed. -2 Stat 759, 763 (June 26, 1812)“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient, until the same shall be otherwise provided for by law; and to carry this act into effect, one hundred thousand dollars be, and the same are hereby appropriated, to be paid out of any monies in the treasury not otherwise appropriated.”-An Act for the Safe Keeping and Accommodation of Prisoners of War, War of 1812
