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Privateering and Letters of Marque

The state's licensed private sea war: a written commission authorising a privately owned and privately financed vessel to make war on the shipping of a named enemy, secured by a bond or bail, governed by written instructions, and completed only when a prize court condemned the capture.

Also writtenLetters of marque; Letters of reprisal; Privateering commissions; Private men of war; Letter of marque ships

A privateer was a privately owned, privately financed and privately manned vessel licensed by a sovereign to make war on the shipping of a named enemy, and on nothing else. Almost all of the difference between that and piracy lay in paper. The decree that turned a capture into property is at prize law and condemnation, the dividing of a take at plunder, shares and compensation.

Three instruments, kept apart

A letter of reprisal was the older and narrower instrument: a licence to a subject wronged abroad and denied justice there to make his loss good out of that nation's property. A letter of marque properly so called was a general wartime licence against enemy shipping, and the two remained distinct in law into the 1690s. A letter of marque ship was an armed merchantman that sailed with a cargo and took a prize if one offered; a private man of war carried no cargo and cruised for prizes as her trade. The Duke and Dutchess company deposed in August 1711 "That we went out as Private Men of War and not as trading ships".1

The paper chain

The Admiralty sent a warrant to the judge of the High Court of Admiralty, requiring him to issue letters of marque to a private commander. He then declared in that court his ship, her armament, her crew and her officers. Persons who stood surety for him entered a bond for his correct performance of his articles, replaced from 1696 by a bail. The security answered for his conduct under his instructions, so that the men who stood behind him had a stake in the legality of every capture. The declarations survive as HCA 26, 104 volumes for 1689 to 1809, the warrants and bonds as HCA 25, 229 bundles from 1549.2

What the instructions required

The fullest list found for a golden-age war is fifteen articles, from an anonymous manuscript of about 1730 assigned to the Spanish war of 1718 to 1720. They required the holder to carry prizes into a port of the King's dominions to be adjudged, to send the master and pilot with the ship's papers to the judge of the Admiralty, and neither to kill in cold blood nor treat prisoners cruelly, on forfeiture of the commission. Another forbade anything against the subjects of friends. The list rests on one damaged transcription and is probable at best.3

The Crown's changing share

Under the Act of 4 William and Mary chapter 25, for continuing the acts prohibiting trade with France and for the encouragement of privateers, the net proceeds of the sale of a prize taken by a private man of war were divided into five parts, of which four went to the persons interested in the privateer and the fifth to the Crown, while the prize ship herself and all her arms, ammunition, tackle, cables, anchors, sails and furniture were had and enjoyed by the captors. That is the same Act the official legislation database styles the Trade with France Act 1692, and the companion record on prize law and condemnation quotes its prize provisions under that reference. An Act of 1708 is said to have abolished the Crown's share in goods taken by privateers and to have required the Admiralty to issue letters of marque to all who applied, but its text has not been read here. Men usually served on shares rather than wages, and a commission bought no exemption from the press.4

Peace as the expiry date

A commission expired on a date fixed by diplomats, and the expiry fell on a whole fleet at once. Article IX of the Anglo-French treaty of Ryswick made all letters, of reprisal as well as of marque and counter-marque, granted hitherto on either side for any cause, null and void, and allowed no like letters in future unless it were first made manifest that right had been denied. Utrecht did the same work in 1713.5

Genuine commissions, other uses

The commissions popularly called forged or expired turn out to be neither. Lord Archibald Hamilton, governor of Jamaica, granted privateering commissions in late 1715 nominally against pirates, ten vessels appearing on the list laid before the Council of Trade and Plantations, among them the Eagle and Barsheba on 21 November for six months and the Bennet on 12 December. Captain John Balchen reported on 13 May 1716 that two of them "had my Lord Hamilton's Commission for suppressing of piracys, but this design, as they said themselves was upon the wrecks" of the plate fleet. It was no licence against the subjects of Spain, a power then in amity.6

The machinery was then used in peacetime to give the seizures a title. Samuel Page, secretary of Jamaica, deposed on 15 May 1716 that a Spanish sloop had been sent into Port Royal "to be condemned", her captor having first taken out the money and jewels, undertaking that he "wou'd remain at sea with the mony until she was condemn'd"; she was condemned with her whole cargo on 7 March. Stanhope directed on 19 May that Hamilton's commissions be annulled. The merchants' representation records that this captor held an estate in Jamaica and had "given good security for his navigation", and calls the business "downright robbery".7

The nursery claim

The proposition that privateering fed piracy is put in the General History of the Pyrates of 1724, whose preface has "that Privateers in Time of War are a Nursery for Pyrates against a Peace", and which says elsewhere that piracy after a war is "but the same Practice without a Commission".

No letter of marque, warrant, declaration, bond or bail has been seen in the original or in facsimile; the procedure is described from The National Archives' descriptions of the two series and from the secondary literature. No count of commissions is offered, and the one aggregate used is local: 127 Bristol declarations between 1702 and 1713. Forged commissions remain unevidenced rather than disproved. The prize shares are read from the statute of 1692 itself; what the Act of 1708 did to them comes from modern accounts, its text not yet read.

What the evidence does not settle

Commissioning documents

  • Which original letters of marque, warrants, bonds or bail records survive for the named cases

Pirates' prior commissions

  • The proportion of pirates who previously held commissions is unknown

Forged commissions

  • Whether forged privateering commissions existed remains unresolved, not disproved

Each line is one question with its own grade, taken from the register where a claim carries it. Nothing here is graded as a whole.

Sources for this record

Every statement above that rests on a checked claim carries a small number; the numbers lead here. Each entry gives what is claimed, how far the record supports it, and where it comes from.

  1. Three instruments must be kept apart: a letter of reprisal was a narrow licence to a subject who had been wronged abroad and denied justice there to make his loss good out of that nation's property; a letter of marque properly so called was a general wartime licence against enemy shipping, the two remaining distinct in law into the 1690s; and a letter of marque ship was an armed merchantman that sailed with a cargo and took a prize if one offered, as against a private man of war which carried no cargo and cruised for prizes as her trade, a distinction the men themselves drew when the company of the Duke and Dutchess deposed in August 1711 "That we went out as Private Men of War and not as trading ships, And that no sort of Merchandise was shipped on board said Ships to trade withall". Unverified Reported, not yet checked against the record. Postgraduate thesis and local-history monograph resting on archival research: Toby Gane, Aspects of English Law Concerning Piracy and Privateering, 1603 to 1760, MPhil thesis, University of St Andrews, 1990; Donald Jones, Captain Woodes Rogers' Voyage Round the World 1708 to 1711, Bristol Branch of the Historical Association Local History Pamphlets 79, 1992, quoting the Chancery exhibits at P.R.O. C 104/36 to 40
  2. The commissioning procedure ran from a warrant sent by the Lord High Admiral or the Commissioners of the Admiralty to the judge of the High Court of Admiralty, through a declaration made by the commander in that court giving specified details of his ship, her armament, her crew and her officers, to a bond entered by sureties for his correct performance of his articles, replaced by a bail from 1696; the declarations survive as HCA 26, 104 volumes covering 1689 to 1809, and the warrants, bonds and bails as HCA 25, 229 bundles covering 1549 to 1820. Unverified Reported, not yet checked against the record. Repository catalogue descriptions of archival series: The National Archives, Kew, scope and content notes for HCA 26, Registers of Declarations for Letters of Marque, 1689 to 1809, and HCA 25, Warrants, Bonds and Bails for Letters of Marque, 1549 to 1820, with the Instance and Prize Court group description
  3. A commissioned privateer's instructions required him to carry his prizes into a port of the King's dominions to be adjudged, to send the master and pilot of the prize with her papers to the judge of the Admiralty to be examined, to preserve the goods until judgement, to attempt nothing against the subjects of friends, and neither to kill anybody in cold blood nor to treat prisoners cruelly, on forfeiture of the commission. Unverified Reported, not yet checked against the record. Postgraduate thesis transcribing a period manuscript: Toby Gane, Aspects of English Law Concerning Piracy and Privateering, 1603 to 1760, 1990, transcribing the fifteen instructions from an anonymous manuscript of about 1730 in the National Maritime Museum, pages 61 to 63, assigned there to the war with Spain of 1718 to 1720
  4. Under the Act of 4 William and Mary for continuing the acts prohibiting trade with France and for the encouragement of privateers, the net proceeds of the sale of a prize taken by a private man of war were divided into five parts, of which four went to the persons interested in the privateer and the fifth to the Crown, while the prize ship herself and all her arms, ammunition, tackle, cables, anchors, sails and furniture were had and enjoyed by the captors. The citation is settled: the statute is 4 William and Mary c. 25, the same Act that legislation.gov.uk styles the Trade with France Act 1692. The Act of 1708 said to have abolished the Crown's share in goods taken by privateers and to have required the Admiralty to issue letters of marque to all who applied is not carried here, its text not having been read. Confirmed Directly supported by the record. Statute: "William and Mary, 1692: An Act for continuing the Acts For prohibiting all Trade and Commerce with France and for the encouragement of Privateers. [Chapter XXV. Rot. Parl. pt. 5. nu. 7.]", in Statutes of the Realm: Volume 6, 1685-94, ed. John Raithby (1819), pp. 419-425, read on British History Online: "the neat proceed of the said sale after such deductions in case where such Prize was taken by any private Man of Warr shall be divided into five parts of which foure parts shall be answered to the Persons interested in the Privateer or Privateers which took the said Prize and the other fifth part shall be answered and paid to their Majesties their Heirs and Successors And in case any such Prize was taken by any private Man of Warr the Shipp or Vessell so surprized or taken as Prize and all the Arms Ammunition Tackle Cables Anchors Sails and Furniture thereof shall bee had taken and enjoyed by the Persons interested in the private Man of Warr which took the same"
  5. Article IX of the Anglo-French treaty of Ryswick of 1697 made all letters, as well of reprisal as of marque and counter-marque, granted hitherto on either side for any cause, null and void, and provided that no like letters be granted in future unless it were first made manifest that right had been denied. Unverified Reported, not yet checked against the record. Contemporary printed compilation of treaty texts: Jacques Bernard (compiler), The Acts and Negotiations, together with the Particular Articles at Large, of the General Peace, Concluded at Ryswick, London, 1698, Anglo-French Article IX, Internet Archive copy actsnegotiations00bern
  6. Lord Archibald Hamilton, governor of Jamaica, granted privateering commissions in late 1715 nominally against pirates, a list of ten vessels commissioned by him being laid before the Council of Trade and Plantations, among them the sloops Eagle and Barsheba on 21 November for six months and the sloop Bennet on 12 December, and Captain John Balchen of HMS Diamond reported on 13 May 1716 that two of the sloops "had my Lord Hamilton's Commission for suppressing of piracys, but this design, as they said themselves was upon the wrecks", so that the commissions used on the Florida wrecks were genuine and current rather than forged or expired. Confirmed Directly supported by the record. Calendared state papers with enclosures: Mr Secretary Stanhope to the Council of Trade and Plantations, 19 May 1716, item 158 with enclosures ii, iv and v, Calendar of State Papers Colonial, America and West Indies, volume 29, 1716 to 1717, C.O. 137, 11
  7. The deposition of Samuel Page, secretary of Jamaica, sworn 15 May 1716, records that a Spanish sloop taken by the commissioned sloop Bennet was sent into Port Royal "to be condemned" after her captor had taken out the money, jewels and fine goods, the captor undertaking that he "wou'd remain at sea with the mony until she was condemn'd", and that she was condemned with her whole cargo on 7 March; Secretary Stanhope directed on 19 May 1716 that Hamilton's commissions be annulled, and the merchants' representation records that the captor held an estate in Jamaica and had "given good security for his navigation" while calling the business "downright robbery". Confirmed Directly supported by the record. Calendared state papers with enclosures: Mr Secretary Stanhope to the Council of Trade and Plantations, 19 May 1716, item 158 with enclosures v and vii, Calendar of State Papers Colonial, America and West Indies, volume 29, 1716 to 1717, C.O. 137, 11