Aya Katz
Note: This article was first published in the Laffite Society Chronicles in 2014
Today, very few people have a clear idea of what privateering is and how
it differs from piracy, despite the fact that the United States constitution still has a provision for the issuing of letters of marque and reprisal. Many people think that the word “privateer” is a synonym for “pirate”. But before the War of 1812privateering was a respectable way of life, and this perception changed after thewar. Jean Laffite, who had been both a smuggler and a privateer under a letter of marque from Cartagena, suffered considerably from a misperception that he was a pirate. The changing laws about the privately funded waging of war are thereason for the continued confusion on this issue.
The early years of the American republic had very few laws about the ways in which war and warfare were to be conducted, and the basic framework to which the government of the United States adhered was spelled out in the constitution. “Article I, Section 8: Congress shall have the power to define and punish piracies, to declare and grant letters of marque and reprisal, and make rules concerning captures on land and water, to raise and support armies, to provide and maintain a Navy, and to provide for calling forth the militia.”
In the structure provided by the framers of the constitution, there was to be no permanent army of the United States, because a standing army was used by the British to harass the American colonists. For this reason, the constitution provided for armies to be raised as necessary, in times of war, but not to remain in existence in peacetime. On the other hand, there was to be a permanent Navy,and the militia was to be called up in times of need.
The Navy was not meant for war alone. It was a kind of maritime police force that saw to it that order was maintained on the high seas, and also served an ancillary function to help with tax collection on imports. That is why it was to remain standing even in times of peace, but it was meant to be a small force, not an armada poised for conquest. On the other hand, in times of war, letters of marque would be granted to private ship owners and captains, so that they might help with the war effort, again at very little cost to the citizens of the United States, as the privateer was to make his profit at the expense of the enemy.
The constitution was written to limit the powers of the government and not the people, and so any power not granted to the Federal government was deemed to have been reserved to states,severally, and if not claimed by any given state, then to the people of that state. This meant, among other things, that while the executive branch of the Federal government could not set out to war against any foreign state or principality without a formal declaration of war approved by Congress, the individual citizens of the United States had every right so to do, unless, of course, their state constitutions or laws prohibited them from doing so.
Given that this was the state of affairs, American privateers, and also foreign privateers operating within American territorial waters, could have received authorization for their acts of war by getting a letter of marque issued to them by the United States government, when it was officially at war with some foreign power, or by having a letter of marque from a foreign power, even when the United States was not at war with anyone.
Before the first neurality act was signed, it was common for American privateers to have letters of marque issued to them by the government of France and to go after British ships when France was at war with Britain, even though the United States was not at war with Britain. Britain complained about this to the government of the United States, and as a capitulation to the British demand that this be a precondition to the signing of the Jay Treaty, Congress passed the very first neutrality act, and it went into effect in 1794. Despite the passage of the Neutrality Act, many Americans continued with privateering and filibustering, as it was not they who had wanted the law passed: it was the British who campaigned for this law to be passed in the United States.
The Neutrality Act of 1794 did not concern itself only with privateers at sea, but also with
filibusters on land. And it did not limit itself to aggressions against Britain and its colonies. It stated: “If any person shall within the territory or jurisdiction of the United States begin or set on foot or provide or prepare the means for any military expedition or enterprise…against the territory or dominions of any foreign prince or state of whom the United States was at peace that person will be guilty of a misdemeanour.” The act also set a three mile territorial limit at sea and forbade foreign war vessels from outfitting in U.S. waters. It was for violating this law that Aaron Burr was convicted, when he was acquitted of the charge of treason against the United States. Because he was trying to liberate territories belonging to Spain when Spain and the United States were not officially at war, Burr was found guilty of a misdemeanor.
One of the features of the Neutrality Act as it was first promulgated was that it allowed for such private wars to be waged outside the jurisdiction or territories of the United States. It was sometimes interpreted to apply to American citizens, but not to foreigners.
While the constitution granted Congress the power to define piracy, that term was left undefined by legislation, and its meaning was established by case law. The difference between a pirate and a privateer was understood at common law. Piracy was an act of robbery or criminal violence at sea (United States v. Smith, 1820). A privateer was someone who operated lawfully against an enemy vessel under a letter of marque. Jean Laffite was never a pirate, but he did at times violate other laws pertaining to taxation and limitations on free trade. Paradoxically, it was those other laws that made his business the most profitable.
When Jean and Pierre Laffite first showed up in American territorial waters, they were acting as neither pirates nor privateers. They were smugglers. And in order to understand why their services as smugglers were very much welcomed by the people of New Orleans, we have to look to the events leading up to the Embargo Act of 1807.
In the infancy of the American republic, there had been much debate as to how war was to be financed. Alexander Hamilton favored deficit spending and high duties on luxury items. As Secretary of the Treasury, he founded the Revenue Cutter Service in 1790, whose main task was to enforce duties on enumerated items, including wines , spirits, coffee and tea. Taxes on these items, though they applied to the goods in question, were in fact taxes on the American people, and anyone who could get those items without the added tax wished to do so. So there was already a place for smugglers in the grand scheme of things very early in the life of a republic that rose out of a popular uprising against a tax on tea.
However, when Thomas Jefferson came to power, he wanted to make sure that the United States would stay out of war, and instead of recommending high duties on goods in order to finance a strong Navy, he asked Congress to pass the Embargo Act of 1807. Under the Embargo Act, all commerce with other countries was outlawed. Instead of protecting American vessels at sea, the Navy’s job was to make sure they did not go anywhere or conduct business. While this may have seemed like a good idea, it was a disaster for merchants, shipowners, manufacturers, planters and anybody who wanted to buy imported goods or sell raw materials to other countries. In short, Americans of all walks of life were severely hampered by the Embargo Act, whether as producers or consumers, buyers or sellers.
When the Laffites opened up shop in Barataria, the people of New Orleans were deeply grateful for their services as purveyors of smuggled goods. There was very little compunction for ordinary people about this. It was not felt that they were doing anything wrong by evading a law that everyone, including all perfectly decent and well-behaved people from every social stratum, abhorred.
While the Laffites were breaking the law, so was everyone who bought from them, and most people did not regard these transactions as at all criminal in nature. In time, the Embargo Act was replaced by the Non-Intercourse Act of 1809, which relaxed restrictions on trade with the entire world, but still made trading with Britain and France illegal. The law was largely unenforceable, but both the Revenue Cutter Service and the Navy were charged with enforcing it, anyway, and this was a thankless job. Early clashes by the Laffites with the agents of law enforcement in the United States, the customs service and the Navy, were centered on evasion of laws concerning taxes on imports and restrictions on
trade.
On November 11, 1811 the Republic of Cartagena de las Indias was founded through a rebellion against Spain. This gave Jean Laffite the opportunity in 1812 of obtaining a letter of marque from Cartagena to pillage Spanish vessels. When the War of 1812 broke out, Jean Laffite was a legitimate privateer as well as a smuggler. And in fact, up to that point, nobody in the American judicial system had accused him of being a pirate.
At the start of the war, the American Navy, which had heretofore been deployed mostly on small peace-keeping missions and to enforce customs laws and embargoes, was unprepared for serious battles at sea. But the privateers operating in and around American territorial waters were ready. They had been doing battle with enemy vessels as part of their stock in trade; they had seasoned sailors and cannoneers who had seen action and lived to tell the tale. The Baratarian privateers under Jean Laffite were among these. But there were still standing orders to get rid of them, as they were violating laws about imports and exports. Commodore Patterson of the United States Navy took his task of breaking up smuggling rings much more seriously than his oath to defend the United States from a foreign invader.
That is why, when Jean Laffite was contacted by the British in September of 1814 to secure his assistance in their venture of re-taking their colonies, and Laffite sent word to the Americans about what was going, Patterson chose to attack the Baratarians, rather than to defend Ft. Bowyer from the British force that he knew was coming. His confiscation of property and ships was not used in the manner of immediate requisition in order to do battle with the enemy, but the goods were sold atmauction, eventually to raise money to pay Patterson for his work.
Meanwhile, during the lead up to the Battle of New Orleans and throughout the war until peace was signed, the confiscated privateering ships were kept out of commission, so that neither the Americans nor their Baratarian allies could use them against the British.
It is telling that Patterson took chocolate and tobacco, silk and gold from the Baratarian
storehouses, items that could be of no use in battle, but he somehow neglected to get flint and gunpowder, which Laffite was able to provide to the American forces under General Jackson as a willing donation for the benefit of the war effort.
There were no American naval victories under Patterson’s command against the British, and the Battle of Lake Borgne for which he was responsible was a terrible disaster. The Baratarian volunteers, including Jean and Pierre Laffite and Dominique You and Renato Beluche, and the artillery, gunpowder and flints that they provided, were indispensible to the American victory. That these were donation sfrom the private sector, and seasoned volunteers rather than conscripts, is deeply significant in view of the legal history of how war was financed in the early American republic.
Governor Claiborne may have referred to the Baratarians as “banditti”, but their only act of
banditry was to flaunt the laws that restricted free trade, taxed tea and coffee and cloth and spirits, and by acting as privateers against enemy ships. They had never been in the business of robbing Americans, and they contributed freely what the government was not able to provide for the war effort.
After the Battle of New Orleans, the Laffite contribution was briefly acknowledged and then just as quickly forgotten. The confiscated ships were not returned, the looted items were never paid for. No restitution was made. Patterson was allowed to profit from the government raid.
And over time, Jean Laffite came to be known in official records and in historical accounts as a pirate. Some might argue that this was a misunderstanding of his situation and the facts that surrounded his operation at Barataria and later at Galveston. But in fact, Laffite may have been just one of many victims of a historical trend that slowly but surely eradicated privateering as an honorable profession.
Peace was signed with the British, and despite the resounding success of the American side at the Battle of New Orleans, the Treaty of Ghent was not on favorable terms to the United States. The borders were returned to the status quo ante, there was no provision for British reparations for the atrocities committed at the Sack of Hampton nor for the damage incurred during the burning of Washington. The Americans still remained indebted to a British bank for the payment they owed on the Louisiana purchase and which came due in 1818, precipitating the Panic of 1819.
Jean Laffite was still a privateer for Cartagena, but he did not have his ships, and when on
December 6, 1815 Pablo Morillo sacked and burned and returned the city to Spanish dominion, Laffite could do nothing to defend it, and he thereby lost his legitimate privateering license. He had chosen to stay and help defend the United States, rather than sail to Cartagena with his ships when he heard the Patterson-Ross raid was underway. Writing about this to President Madison on December 27, 1815, Laffite still hoped for some word from the President which would allow him to continue to serve as a privateer in the United States.
When all hope of that disappeared, he founded a new colony on Galveston Island and began equipping privateers against Spain under commissions and letters of marque issued by his own government. The Le Brave incident is cited by many as the point at which Laffite became known as a pirate. A ship by the name of Le Brave, owned by Laffite and captained by one DesFarges, attacked a Spanish vessel named the Filomena and was intercepted by an American navy vessel within American territorial waters while carrying away its prize. Was this an act of piracy? By which legal definition?
The United States was taking upon itself the defense of a foreign vessel using its naval forces. Possibly this was because they did not take Laffite’s right to issue letters of marque from Galveston seriously. What was the source of his authority? But at the the same time as this happened to the Laffite operation, many American privateers were suffering a similar fate, due to a tightening of the laws against the private waging of war. The Neutrality Act of 1817 stiffened the penalties against people who fought against countries not at war with the United States, and from a mere misdemeanor, an actof independent privateering or filibustering now carried a penalty of three years imprisonment and athree thousand dollar fine. Americans acting under privateering licenses from South American countries newly liberated from Spain could get into big trouble.
The original intent of the founders as expressed in the constitution was slowly fading, with the disbanding of private maritime forces and an investment in a career Navy equipped to fight expansive territorial wars and not just to enforce customs laws or to prevent robbery at sea. Eventually, the militia was discarded in favor of a standing army. Not only was the United States doing this at home, but like the British before them, they were pressuring their allies to adopt the same system.
When Jean Laffite disbanded his operation in Galveston and went to seek employment in Simon Bolivar’s Gran Colombia, which had recently re-liberated Cartagena from Spain, it was as a commissioned naval officer and not a privateer. This was not by choice. Under pressure from the United States, Bolivar had made privateering illegal, nationalized all the privateering vessels, and granted naval commissions to their captains. Jean Laffite was now a lowly employee of the Colombian government.
Given this historical development and the shifting concept of legitimacy, it is not surprising that the average person today, and even the average historian, may not consider the legal difference between a privateer and a pirate to be significant. The words are used almost interchangeably, with pirate having a slightly more pejorative and colloquial usage, but without any real difference in denotative meaning. To Jean Lafitte, the difference between a privateer and a pirate was like the difference between right and wrong. But his cultural legacy in today’s public consciousness is often seen as that of a “benevolent pirate.” Few can conceive of a legitimate privateer.
By the time Jean Laffite disappeared from the historical record in 1823, whether through death in battle at sea as recorded in the Gaceta Cartagena, or by some other means, he was already not a privateer. He was a commissioned naval officer and a government employee. What happened to him has happened to all of us. If an American today wants to serve his country on board ship, he must join the Navy or the Coast Guard or the Marines. Americans are forbidden to wage war privately under the very stiff penalties of the latest Neutrality Act. Privateering as a profession has entirely disappeared.
Bibliography
Davis, William C. 2005. The Pirates Laffite: The Treacherous World of the Corsairs of the Gulf. Harcourt: New York.
Kennedy, Roger G. 1999. Burr, Hamilton and Jefferson: A Study in Character. Oxford University Press: Oxford.
Latour, Arsène Lacarrière. 2008. (1816). Historical Memoir of the War in West Florida and
Louisiana. Editor: Gene Allen Smith. The Hisoric New Orleans Collection and University of
Florida Press: Gainesville.
Rothbard, Murray N. 1962. The Panic of 1819. Ludwig von Mises Institute: Auburn/
Leave a Reply