A letter of marque is not a letter of reprisal. A letter of marque informs interested parties that the issuing sovereign grants entry into enemy territory. A letter of reprisal grants license to loot enemy property. Typically, these letters of marque and reprisal were maritime boons to give legitimacy to piracy in the interest of the crown. From the perspective of King Charles II, it made no practical difference if Bill Dampier had the blessing of William II or not. The Cygnet was a damned menace, papers or no. Of course, one crown’s menace is another crown’s subcontractor. Dampier was court-martialled for cruelty, not for piracy.
That letters of marque and reprisal were among the enumerated powers of Congress in Article 1 of the Constitution speaks well of their use in maintaining the separation of powers and in bootstrapping a navy without all that hassle of having to recruit and train sailors and build ships and all that mess. Letters of marque and reprisal: when you absolutely, positively have to sink that enemy cargo ship overnight; accept no substitutes.
Of course, it’s generally considered bad form to issue the things. The Golden Age of piracy was long dead by the time the 1856 Paris Declaration was adopted by 55 signatories, not including the US. But privateering was largely defunct by then anyway, the last formal letter issued by Congress in 1815. The funny thing though is how privateering enabled the miscegenation of maritime law with the common law and the Chancery.
In the tumult of 15th century England, before the Parliament got its house in order, English common law had begun to ossify a bit. Rather than describing the jurisprudence of the people, the law had begun to prescribe behavior. It became burgher law rather than peasant law. One of the upshots of this was starched insistence on formal procedure. It didn’t matter if it was functionally a kangaroo court or not, the defendant was required to stand trial in person. No person, no trial.
This was a problem for seized maritime assets. When a privateer hauls a captured vessel up the Thames to turn it over for auction, the original skipper was seldom present for the proceedings, nor could an arrest warrant be lawfully executed in enemy territory. So to free up wharf space, hidebound, powdered wig wearing English judges needed some way to call a defendant. Their solution, rather than to alter what passed for procedural process, was to accuse the ship itself of a crime. That way, the crown enjoyed a little legitimacy for its acts of piracy. Let’s face it here, people: when you’ve got people kicking the wind at Tyburn for petty larceny, you grab whatever fig leaf you can reach.
In the US, this practice, called “civil asset forfeiture” took the “let’s put the property on trial rather than the owner” part and conveniently discarded the “only when the owner is unavailable to stand trial due to jurisdictional issues” bit. As part of drug prohibition efforts, police departments would seize property under the lower “preponderance of evidence” standard required in civil cases and would conspire with prosecutors and court officers to hassle folks whose property had been confiscated when they try to recover their goods. Unclaimed property, as in Merry Olde England, would revert to the authorities, often the very police departments that seized them. A private citizen attempting the same thing would be rightly accused of banditry and imprisoned for a dime, or for life if the prosecutor could make robbery ashore stick.
Brigit: “Would you please stop?”
Me: “Stop what?”
Brigit: “That. Stop that. Not only is it just tiresome, but your little diatribes are filled with historical inaccuracies and your loosey-goosey approach to criminal law is offensive. Seriously? ‘Robbery ashore?’ Do you have any idea how silly it sounds to cite a statute no one’s enforced for a hundred and fifty years? Now what the hell just happened? What was that thing?”
Me: “I’m not sure. And robbery ashore was a rhetorical flourish.”
Brigit: “Please tell me that sea serpents are just a myth. And spare me the rhetorical flourishes. It wounds your credibility. It makes you sound like the crybabies who used to claim libel anytime someone wrote something mean about them online.”
Me: “Sea serpents sort of exist. The oarfish can get to be like thirty feet long. I don’t see the connection. Defamation is pretty easily understood, despite there being very thick, well-developed case law behind it. There’s no excuse for getting it systematically wrong, especially with easily-accessible, ubiquitous primers written by practicing subject matter experts. Robbery ashore has little case law and most people probably haven’t even heard of it. Mentioning it is sort of like showing off.”
Brigit: “That was more than thirty feet. A lot more. Aren’t oarfish supposed to be skinny? That thing was… I don’t know what it was, but it was no oarfish. Besides, why would you bother showing off for me? You know I’m not impressed. If you want to impress me, for whatever reason you might see fit, display integrity. Integrity is attractive. Poncy displays of semi-literate trivia is… is… it’s gauche, dude. Knock it off.”
Me: “Oarfish also aren’t cylindrical and black. That thing? I didn’t get a good enough look. Did you see any scales? And I taught you how to sail this boat, didn’t I?”
Brigit: “No, no scales that I saw, but I wasn’t really paying attention to the texture. The size of it though,” She tucked a stray lock of hair behind her ear. “I could swear I saw some, what’s the word? Some eddies or whatever way out there, like whatever it was was swishing around just under the surface. Helpfulness is good, don’t get me wrong. But if you stick to what you’re good at, it’s easier to earn respect. It’s painful to watch someone who goes out of his way to be cute or clever. Sincerity is becoming. Bullshit is not.”
Me: “Maybe it was a school of giant squid that got rustled up somehow. I wouldn’t be shocked to discover that whale pods have been changing their behavior. Commercial fishing is gone, after all. And it isn’t bullshit. Not usually, anyway. I don’t lie.”
Brigit: “Maybe. Maybe it was just an illusion that looked like a single creature. I don’t know. What I do know is that bullshit is not the same thing as lying. Bullshit can be making up a just-so story from whole cloth, but it can also be taking the truth and stretching it just a little too thin, making up something that sounds plausible but that can’t withstand close scrutiny. You allege that police departments had become basically highway robbers with state-issued badges and sidearms. How do you support that accusation? What are you comparing it to? Is it really a problem, or are you blowing a few highly-visible incidents out of proportion?”
Me: “Let’s hope that’s all it was. Whatever the case, I don’t see anything now. And the buzzing in my head has gone down a little. Maybe that’s what got Anika. And I’m not asking perfection from police departments, but I don’t think it’s too much to ask for simple redress of injury. Venal problems like one-off corruption are an inevitable part of life. It’s facile and callow to claim otherwise. But for institutions to have even the semblance of integrity, constituents must insist on consistent justice across the board. ‘Qualified immunity’ is beyond preposterous. If the rule of law does not apply to everyone, including the sovereign and his minions, then how can we claim to live in a free society?”
Brigit: “We promised Clay and Annie we’d meet them in Coos Bay either way, and I plan to keep that promise. And whoever sold you the line that we lived in a free society deserves an award. There will always be rule, always be dominion, always be discrimination. I’m frankly shocked that the US made it as long as it did and extended the rule of law to cover most of the peasantry and the bourgeoisie. Near-universal franchise, near-universal civil rights, near-universal access to literacy? Come on. How many thousands of years of civilization were characterized by subjugation, slavery, and state-sponsored murder? So, what, statute law got out of control? Police were seizing too much property? The US had outrageous prison populations? People were being sentenced to death and later exonerated thanks to DNA tests? Whoop-de-doo. Considering that the Americas were where Britain used to send convicts, I think we were doing pretty well for ourselves. It could have been a lot worse.”
Me: “What, like this?” I gestured lazily back towards shore. The wind shifted a little, so I sheeted the main in a touch, pulled the jib a bit tighter. “Yes, of course it could have been worse, but since when was that an argument to not at least work toward institutional reform? ‘It could be worse’ is the laziest cop-out I can imagine.”
Brigit: “Some things…” She paused, lost half in memory, half in the creak of the rigging and the spray of the salt. “Some things cannot be reformed. I don’t pretend to know what it was that ended up in” she mimicked my languid gesture towards the benighted land, “that. What I do know is that well-intentioned reform was a fly farting into a hurricane. What do you know about the Tao?”
Me: “The same bullshit that you just got done berating me over.”
Brigit: “Permit me some bullshit of my own. This is third-hand from the Tao Te Ching, so don’t expect it to be accurate. I haven’t read it in Mandarin, and it’s been a long time since I’ve even picked up a translated copy.” Thunderheads were starting to collect to the southwest. I began scanning for a good place to hole up in case we ended up in weather. “Lao Tzu came upon a village one day. He was tired from his travels and wished to get a drink of sweet, delicious water from the well in the village square.”
Me: “Are you sure this was in the Tao Te Ching? I thought the primary document was just abstruse poetry you needed to decode using the contemporary canon.”
Brigit: “Like I said, it’s third-hand. Maybe it’s just the errata, whatever. The story is what’s important, not the citation.”
Me: “You literally just finished lecturing me about exactly the same thing.”
Brigit: “When I do it, it’s charming. Now hush up and listen. Lao Tzu wanted water, but there was a bull rampaging on the main street. It was kicking over stalls, wrecking store fronts, just plain terrorizing the place.”
Me: “He was a bull of bulls.”
Me: “Never mind. I met a bull once. Interesting guy.”
Brigit: “Yeah, so anyway, the concerned villagers asked Lao Tzu, ‘what will you do? How can you stop this rampaging bull? We want to pass too.’ Lao Tzu looked at them kindly and said, ‘I shall take the other street.’ And he did. And the water was sweet and delicious.”
Me: “I bet that works pretty well so long as there are two streets and just one bull.”
She laughed at that. A tinkling laugh punctuated by a rather pronounced, if endearing snort at the end. I tried to remember everything I could about deepwater squid. My understanding came mostly from what I could recall from Jules Verne novels and elementary school visits to the Monterey Bay Aquarium. There was something about sucker marks on the flanks sperm whales harpooned during the era of whaling and something about sea serpent legends. The half-jokes we’d been making about visiting a library at our earliest convenience were starting to seem less humorous.
In the abyss, dark coils flexed and roiled, sending ominous tremors through the hidden, serpentine labyrinths of the dark deep. They say the African elephant can communicate over great distances using extremely low frequency vocalizations and sensitive pads in their feet. A fully grown male African elephant stands about 12 feet high at the shoulder. Compared to the proud leviathans cruising the ocean lanes, it is a mere house pet. I heard Lachesis yowl from inside the cabin. I hoped Anika and Clay were doing okay.