Marc Liebman's Blog, page 4

Letters of Marque May Not Be Dead

Unless one studies the Constitution, one probably does not know that Article I (Legislative), Section 8, Clause 11 gives Congress the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

The first known letters of marque were issued around 1243 by King Henry III of England to authorize selected members of the nobility to seize enemy ships and share the proceeds (from the auction of the ship, cargo, and sometimes the crew) with the crown. The quid pro quo was that the noble holding the letter of marque could keep the majority of the money, thus enhancing his wealth.

The word marque comes from the French Provençal dialect word marca or marca which translates “to seize or pledge.” The crown (the ruling king or duke) would write a letter to the individual that would authorize him to man and equip a ship to take ships of a specific country or countries. Hence the term letter of marque.

During the American Revolution, the Continental Congress issued 1,697 letters of marque, and the 13 state legislatures added somewhere between 942 and 1,151 more. They were effective in that American privateers captured 3,087 ships of His Majesty George III’s merchant marine.  (See May 5th, 2019 Blog Post #21 – Prize Money, Patriotism and Instant Wealth – https://marcliebman.com/prize-money-war-patriotism-and-instant-wealth/ )

When the war of 1812 broke out, Congress issued about 1,100 more. Records are imprecise, but most historians believe that U.S. Privateers took between 1,500 and 2,000 of George III’s ships during the two and a half years of war.

Fast forward to the American Civil War when the Confederacy issued 99 letters of marque. They were not as successful as their predecessors and took few U.S. ships. Lincoln’s government did not issue any.

History tells us that since the first letter of marque was issued, there were many treaties over the next 600 years that abolished them. All were ignored by the signatories in any subsequent war.

In 1856, seven nations (Austria, France, Russia, Sardinia, turkey and the United Kingdom) signed the Paris Declaration Respecting Maritime Law. Ultimately 24 nations plus most of the German and Italian duchies agreed to its provisions. One of its clauses specifically abolished privateering and letters of marque. Initially, the United States neither signed nor agreed to the document but did so in 1861 when the Civil War broke out. The Confederacy agreed to all the provisions except the one on privateering.

Holders of a letter of marque can only seize ships of a declared enemy of the government that issued the letter. The privateer is required to take the captured ship to be sold in a port in the issuing country or one with which it is allied or a neutral country.

In return for a letter of marque, the owner(s) of the ship are required to remand a portion of the proceeds from the sale of any captured ship, usually between 10 and 15% to the country that issued the letter. In addition, if a privateer holding a valid letter of marque is captured, is crew are to be treated as prisoners of war, not pirates. The infamous or, depending on your point of view, pirate Captain William Kidd was hung because English authorities did not believe his letter of marque was valid.

Here’s the interesting factoid. The concept of the letter of marque is not dead. In recent years, several Senators and Congressmen have introduced bills that would have, if passed, authorized privateers to seize ships owned by drug cartels, Russian oligarchs, or captured by Somali pirates. None made it to the floor for a vote.

Image is the 1837 engraving of the hanging of Captain Kidd

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Importance of Sugar

Sometime around 4,000 B.C.E., people in what is now India, Southeast Asia, and Taiwan figured out how to extract the juice from the sugarcane stalk. Early refining techniques to create sugar as we know it today originated in India.

Before refining was “perfected,” purchasers of sugar cane chewed on the stalk and enjoyed the sweet juice. Creating dried sugar was simple: pound the cane with stones, collect the juice, and let it dry in the sun. The crystals were opaque and looked like quartz.

By the Sixth Century A.D., sugar was being cultivated in Mesopotamia. Ultimately, what we call sugar made its way to Europe.

Portuguese traders brought sugar to Brazil, and by 1540, there were 800 sugar cane mills on the island of Santa Catarina (south of Rio De Janeiro) and another 2,000 or so in northern Brazil and Surinam. By then, sugar was being grown on every island in the Caribbean and had become a major cash crop.

From sugarcane, one can make rum, molasses, and dried sugar juice we know as sugar. Growing sugar is a labor-intensive business, and by the late 18th Century, plantation owners were importing slaves to work on their farms and in their sugar mills.

Sugar and its derivatives – rum and molasses – were so important that during the American Revolution and French Revolutionary and Napoleonic Wars, Parliament ordered merchants who traded in sugar, rum, and molasses to only allow ships carrying their cargoes to sail in convoys escorted by the Royal Navy.

Our Founding Fathers, many of whom were merchants who knew the value of sugar, believed that if they could disrupt the flow of sugar to England, the merchants whose sugar was captured would put pressure on Parliament to end the war.

Their motives weren’t totally patriotic because any captured ships carrying sugar could be auctioned off as prizes. At the auction, a merchant could purchase a 50 lb. barrel of sugar, rum, or molasses for a fraction of the cost he would pay if bought from a merchant in the Caribbean. Under Historical Notes at https://marcliebman.com/jaco-jacinto-age-of-sail-series/ you can find a detailed description of what a cargo of rum would be worth in London. A 50-gallon barrel of rum could be purchased for five shillings on any British-held Caribbean Island. That same barrel would sell for £2 – £3. Back then, there were 20 shillings to a pound, so one’s five shillings of rum were worth about 40 to 60 shillings in London. Suffice it to say, the profits were very healthy.

Our Founding Fathers knew that every fall, a convoy of ships loaded with sugar, rum, molasses, cocoa, and coffee beans would set sail from Port Royal (modern-day Kingston) in Jamaica. In 1775, the Royal Navy had 550 rated ships which doesn’t include armed brigs, sloops-of-war, etc. When the war started, the Continental Navy didn’t exist and consortiums were converting merchant ships of all types into armed vessels to take Royal Merchant Marine ships as prizes.

In July 1777, four Continental Navy ships Randolph – 32 guns, Columbus – 24 guns, Andrea Doria – 14 guns, and Surprise – 12 guns – rendezvoused off the island of Abaco in the Bahamas. The task force, commanded by Nicolas Biddle, was ordered to intercept a convoy of an estimated 100 merchant ships carrying sugar, rum, molasses, coffee, and cacao beans leaving Jamaica for England.

Given the time, Biddle’s intelligence was spot on, only the date was off. The convoy left in April 1777, and Biddle’s squadron missed the British convoy. Whether or not they could have taken any ships is a matter of conjecture since the Royal Navy assigned H.M.S. Maidstone – 26 guns, H.M.S. Wichelsea – 26 guns, H.M.S. Badger – 16 guns, H.M.S. Porcupine – 14 guns, and H.M.S. Racehorse – 20 guns, as escorts. Had the Americans made contact, they would have been outnumbered and outgunned.

What is also newsworthy is that during the American Revolution, the Continental Navy and U.S. privateers captured between 12 and 15% of the Royal Merchant Marine. These losses affected the Royal Navy’s ability to support the British Army. Financially, the losses of these cargos raised rates on the Lloyds Insurance Exchange and were painful to many English merchants and helped fuel opposition to the war in Parliament.

1823 Thomas Clay painting of men loading a barrel of sugar in Antiqua onto a boat to be taken to a merchant ship. National Maritime Museum, Greenwich, U.K.

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Jim Blythe Veterans Impact Show

Jim Blythe’s Veteran’s Impact Show – Jim and Marc talk about the process of writing a novel.

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Fire Book Awards interviews Marc about novel Insidious Dragon

Marc is interviewed by Fire Book Awards hosts Rita Mills and Sandy Lawrence. We talk about the novel Insidious Dragon and how it came about as well as how I come up with the plots and story lines of my novels.

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Our Oath of Office Makes the U.S. Unique

Way back when, English citizens, particularly the nobility, had to take an oath of office and swear allegiance to the king. It stated that when King John agreed to sign the Magna Carta and in return, the nobles had to swear allegiance to him, the king. Over the centuries, the British Parliament, often directed by the king or queen, changed the oath, sometimes for political reasons and other times for religious reasons. With every change, the core of the oath required members of Parliament and English citizens to swear allegiance to the king.

In 1868, Parliament passed the Promissory Oaths Act in which each citizen was required to state:

I – state your name – do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs, and successors, according to law, so help me God.

This law and who in the U.K. needs to take the oath has been amended several times since then, but the words have remained pretty much unchanged. The same is true with the majority of constitutional monarchies around the globe, in which the oath of office refers to the person taking the oath and promising allegiance to the king or queen.

Understand that when our Founding Fathers wrote our Constitution, they were aware of the history of oaths in England, France, and the rest of Europe. All were adamantly opposed to having some sort of aristocracy or king.

What makes our oath so different and unique is that the oath members of the U.S. military, judiciary, legislatures, etc. take is that part of the oath requires them to say, I will support and defend the Constitution of the United States against all enemies foreign and domestic, and that I will bear true faith and allegiance to the same….

Those are pretty powerful words, but no mention of a sovereign, i.e., a human being. What we, citizens of the United States, agree to do by this oath is defend the freedoms, privileges, and rights given to us under the Constitution and its 27 amendments.

Yes, I know, other countries now, repeat now, have something similar in their constitutions. However, by many, many decades, we were the first and every immigrant who becomes a citizen takes this oath.

We the People are supposed to all be equal under the law and as citizens, We the People choose our leaders. In modern history, we were the first to do this.

This is one of the reasons that the United States became a beacon of hope and why millions left and still leave the countries of their birth to come to America. They often arrive with nothing more than the shirts on their backs and a dream of a better life for themselves and their children.

We the People are a nation of immigrants. It is in our DNA, and it all starts with an oath of office that is in Article II, Clause 8 of our Constitution, which was the first of its kind.

1876 Painting of Washington taking the oath as President for the first time published by Currier & Ives.

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Politics Behind the Logan Act of 1799

Recently, the Logan Act of 1799 has been in the news. The original act was passed by Congress because it criminalized any attempts by a private citizen to negotiate on behalf of the U.S. government.

Article II (Executive), Section 2, Clause 2 of the Constitution states, He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So, what happened? John Adams was President and sent a delegation to France to negotiate an end to the conflict known as the Quasi-War. The war started when the U.S. refused to pay back its loans from the American Revolution, using the rationale that the government of Louis XVI, which made the loans, no longer exists. As a result, the French issued letters of marque to privateers and ordered the French Navy to seize U.S.-flagged ships (See 6/20/21 Post – The Undeclared War Against France – https://marcliebman.com/the-undeclared-war-against-france/ ).

Encouraged by the Democratic-Republicans led by the very pro-French Thomas Jefferson, Dr. George Logan, a Quaker, a pacifist, and a Democratic-Republican representative in the Pennsylvania Legislature, traveled to Paris. His mission was to negotiate an end to the undeclared war and win the release of American seamen and ships captured by the French.

Logan met with Talleyrand and other members of the French Foreign Ministry and told them that the Federalists favored England and were considering siding with Great Britain. This was a bald-faced lie.

Infuriated President Adams and his Secretary of State, Thomas Pickering, saw Logan’s efforts for what it was – a political stunt to embarrass the Federalists, who had a majority in both the House and Senate, and to usurp the power of the president.

The Logan Act of 1799 was passed with 58 – 36 in the House and 18-2 in the Senate. The key elements of the act can be found in Title 18, Section 953 of the U.S. Code which states Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

In 1810, Dr. Logan, now a member of the U.S. Senate, tried to get the 1799 law repealed. Even with a sizeable Democratic-Republican majority in both houses, his efforts failed.

In the years since the bill, several prosecutions have occurred, but no indictments or trials. However, it is worth noting that in December 2020, during President Trump’s first term, the Department of Justice Office of Legal Counsel wrote a memo stating that the Logan Act was constitutional until it was either repealed by Congress or ruled unconstitutional by the Supreme Court. The memo was made public in January 2025.

Image is Dr. George Logan painted by Gilbert Stuart in 1803.

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Origin of the Requirement to Keep Government Records

From the first days of the Continental Congress, it is clear that our Founding Fathers wanted We the People to know what actions were taken by the Federal government and what laws were passed by Congress. To ensure that We the People knew, in July 1789, Theodore Sedgwick, Representative from the Second District of Massachusetts wrote what is known as An Act to provide for the safe keeping of the Acts, Records and Seal of the United States, and for other purposes. Its short name is The Records Act of 1789.

When Sedgwick began writing, he’d already had a successful career. He served as a major in the Continental Army, was a member of the Massachusetts Bar, and was a member of the House of Representatives. Later, he became the Speaker of the House under President Adams and later became a Senator from Massachusetts.

The bill submitted to the House on July 31st, 1789, was passed on to the Senate on August 27th. The Senate sent back the bill on September 7th with a modification approved by the House on September 8th and signed into law by President Washington on September 15th, 1789.

In the first section of Sedgwick’s bill, the name of the Department of Foreign Affairs is changed to the Department of State, which would be led by the Secretary of State. Back then, the Department of State had an internal role along with overseeing our relations with foreign governments.

Sedgwick’s bill authorizes the design of the Seal of the United States and contains five provisions governing how the seal can be used and who retains custody of the design. Its most far-reaching provision is the requirement for publishing information on the actions of Congress.

The Records Act of 1789 requires every piece of legislation that came to the floor of the House and/or Senate for a vote or, if passed and vetoed by the President, to be published in at least three publicly owned newspapers. This ties into Article I (Legislative), Section 8, Clause 7, which states that the Legislative branch shall have the power to Establish post offices and Post roads.

Franklin, in his vision for what became the U.S. Post Office, was that it would be a vehicle to distribute newspapers, pamphlets, books, and magazines. As such, the Post Office would offer a discount to those who use the service which today is called Media Mail.

The Records Act of 1789 required the Federal government to preserve all its official records, including notes and other documents. The Department of State was given the responsibility to collect and store these records. Court records were to be retained by federal courts at all levels and at specified locations in each district. These records, including those from the Executive and Legislative branches, were to be made available to We the People.

When the legal statutes were revised in 1875 and codified into Title 5 U.S. Code, section 301, the Housekeeping Statute. The code now states The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

Powerful words that have often been abused.

Image is of page 1 of The Records Act of 1789 from the National Archives

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What’s a Crime?

When the United States of America became independent on September 3rd, 1783 (the day the Treaty of Paris was signed), the courts of each of the 13 Colonies followed English Common Law, a legal system based on judicial precedents and customs, rather than written laws. This is what governed the Thirteen Colonies from the day each was founded until our Founding Fathers.

The majority of our Founding Fathers realized that under the Articles of Confederation the states had all the power. They could see that the country they sacrificed so much to create would devolve into 13 separate countries with 13 sets of laws and different defense, immigration, and foreign policies.

Hence, 14 years after the U.S. became independent, the Constitutional Convention was convened on May 25th, 1787. Four months later, on September 17th, 1787, the document that governs us today emerged to be ratified. Nine months later, on June 20th, 1788, the Constitution became the law of the land when New Hampshire’s legislature voted to ratify it.

The First Congress convened on March 4th, 1789, and began passing bills that implemented the concepts outlined in the Constitution. One was the Judiciary Act of 1789 which laid the foundation of the U.S. legal system. (See 12/4/2022 Post #188 – The Judiciary Act of 1789 – https://marcliebman.com/the-judiciary-act-of-1789/ ).

With a judiciary established to hear court cases, what crimes could Federal judges and juries hear?

Connecticut Senator Oliver Ellsworth, Federalist from Connecticut and Continental Army lieutenant colonel, and later the third Chief Justice of the U.S. Supreme Court, took the bull by the horns. He began to push for a bill listing the crimes that could be tried in Federal courts. Those not listed could then be tried in state courts.

Ellsworth consulted with other members of the House and Senate and other Founding Fathers as he began to write what became The Crimes Act of 1790. Through it, the Federal government could try a long list that includes crimes such as murder, piracy and mutiny on the high seas, counterfeiting, treason, and larceny. What is also remarkable about The Crimes Act of 1790 is that it defines what an “accessory” to a specific crime is and establishes prison sentences and fines for each listed crime.

Now that the crimes that fell under Federal jurisdiction were listed, Ellsworth went one step further in the Crimes Act of 1790. The law established statutes of limitations for each federal crime, outlined how venues for the trials are set, laid out procedural steps that the prosecutor and the court must follow for crimes in which the death penalty could be awarded for what we call capital crimes, i.e., treason, murder, mutiny, etc.

The Crimes Act of 1790 also sets forth the requirements to charge an individual for perjury and defines diplomatic immunity. It also eliminated an English Common Law concept called “Attainder of Blood” under which the Crown seizes all the property of a convicted criminal. This legal concept left family members destitute and without a means to generate income to support themselves.

Amazingly enough, there was little debate in either the Senate or the House, and the bill passed on April 30th, 1790. Ellsworth’s notes and those of the others who provided input to the bill are often referred to by U.S. Supreme Court as the best insight into what the Founding Fathers were thinking about the powers granted to the U.S. Judiciary system via the Constitution.

The Crime Act of 1790 is the foundation of what we now call the U.S. Code. Its provisions have been modified, expanded, and even changed by the U.S. Congress in the 235 years since it was passed. Its constitutionality, either in whole or in part, has been challenged, yet nothing in the bill has ever been overturned.

Engraving of Oliver Ellsworth, 3rd Chief Justice of the U.S. Supreme Court. Artist unknown.

 

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Shanties of the Sea

 

Life aboard sailing vessels was hard and dangerous. There were no movies, radio or TV. Few rules, other than those regarding discipline, existed to protect the physical and mental health of the crews.

On merchant ships, hardships were endured because the pay was such that if one survived until one’s 30s and didn’t blow one’s wages on wine, women, and song, one could live a comfortable retirement. Plus, one was fed three meals a day while at sea or in port.

If one served in the Royal, French, Continental, and later the U.S. Navy, you were paid less in wages, but there was often the lure of prize money. From one prize, even the lowest seaman on a frigate would earn enough to live modestly for one or two years. Prize money, three square meals a day, excitement and adventure, and even a modicum of medical care offset the risk of being injured in battle or an accident.

Hauling braces – the ropes that hauled the yards from which the sails hung – was hard and very strenuous work. Generally, on each mast of a square-rigged ship, from top to bottom, there was a yard (also known as a spar) for the royal, top-gallant, topsail, and main sail. These yards were heavy and made from oak. Yards for the royals were often 100 feet or more above the main deck. Then, each sail had lines that were sheeted home (tied) to fittings or racks of belaying pins mounted port and starboard.

There were halyards on which one raised flags, staysails, and jibs. They, too, were tied down by lines.

Since there were no electric motors, anchors had to be raised from the bottom by hand. Heavy ropes were wrapped around capstans into which heavy wooden bars were mounted. By pushing on the bars, the anchor would be pulled up.

All of this was hard, physical work that had to be performed in all sorts of weather. What evolved to help get the men pulling together was a series of work songs called Sea Shanties.

The emphasis in the Sea Shanty was not singing but chanting of words to get the sailors hauling on a brace or pushing on a bar to raise an anchor to work in unison. Shanties comes from the French verb for singing, chanter.

However, if you served in the Royal Navy under Lord Nelson, shanties were banned. Instead, one chanted a sequence of numbers in a cadence, each with a specific meaning, to the music from another sailor playing a fiddle. In the Continental/U.S. and French Navies, ships had a Shantyman who called out the words, and those doing the heavy work sang the chorus.

A good “Shantyman” was a highly regarded recruit, and really good ones had a repertoire akin to a band. What evolved were two kinds of shanties. Those for work were further divided into shanties for specific tasks such as hauling braces or raising an anchor.

The second group was shanties, through which the sailors could express themselves about life at sea and the hardships they endured every day. Through the shanty, they could do this without fear of being punished. There are also shanties to help sailors remember and even celebrate a historical event.

However, with the end of the Age of Sail in the 1860s, the shantymen disappeared from the scene. However, the lyrics and songs they sang still live on. If you are interested, check out this website – https://brethrencoast.com/Sea_Shanties.html .

Image is George Cruikshank’s 1822 painting of sailors singing shanties. © The Trustees of the British Museum.

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8 Ways One Can Lose One’s First Amendment Rights

Recently, what is covered and what is not protected by our First Amendment rights has been in the news. For the record, the First Amendment to the U.S. Constitution reads:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This right, which some correctly call a privilege of being a citizen or legal resident of the United States, has limits. Twice in the 300+ posts of this blog, the origins of the First Amendment and to whom it applies and doesn’t were covered.

On March 21st, 2021, Origin of the Scope of the First Amendment – https://marcliebman.com/origin-of-the-scope-of-the-first-amendment/ – was posted. Two years, eight months later, on November 25th, 2023, the subject was revisited in the post titled The First Amendment Has Limits – https://marcliebman.com/the-first-amendment-has-limits/ .

While they are not prerequisites for reading what follows, they may help you understand the current debate over what is allowed under the First Amendment and what is not.

In our 249-year history, our court system, led by the Supreme Court, has established where a citizen or legal alien is protected by the First Amendment. Some are blatantly obvious, some not so and are complex legal issues. And others will surprise you.  are complex legal issues. What follows are eight ways (there are many more) one can lose First Amendment protections for not only speech but also the right of assembly:

Incitement – if one – citizen or non-citizen – encourages another individual to commit a crime. This also includes encouraging a person to commit suicide.False Statements of Fact – by making false statements in public (on the Internet, newspapers, magazines, radio, TV, etc.) that are libelous or slanderous, or affect another’s civil liberties, or are based on a false factual connotation.Fighting Words – individuals cannot utter words publicly that could cause a “breach of the peace” or cause a brawl or riot.Threatening the President of the United States – making a written or verbal threat against the President of the United States may cost one their First Amendment protection.Obscenity – shout obscenities in a public gathering or on a media outlet, and it could cost you First Amendment protection. Educator – what one can say as an educator when employed by a government-run institution or one that receives Federal funding is limited.Public speaking – ditto reasons 1 through 6. Non-citizens – if one is not a citizen and has made statements in the past that are not protected by the First Amendment, the Federal government is permitted to deny the person entry into the U.S.

To bring this to March 2025. Holding a protest against Israel at Columbia University is protected by the First Amendment if the organizers follow the rules the university has for governing them. However, what is not protected is shouting “From the River to the Sea,” holding signs “Kill all the Jews,” occupying campus buildings without permission, vandalizing and/or destroying university property.

And, if one’s student visa or green card granting residency was based on an application containing false information, one loses one’s First Amendment protection. Why? All of the above actions make you a criminal subject to arrest and prosecution. For those, the Fourth, Fifth, Sixth, and Eighth Amendments apply. All we need now are prosecutors who wants to enforce the law.

1885 Cartoon by Joseph Keppler called Attack on Our Ramparts.

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