The early history of the United States offers numerous examples of private war-fighting that are applicable for the early twenty-first century. The most well-known historical example of this were letters of marque and reprisal, but perhaps the most relevant historical analogue for our own time is that of bounties. Bounty hunting, especially in the realm of contemporary law enforcement, is well-known to modern Americans. The FBI’s Ten Most Wanted Fugitives List, bail bondsmen like Duane Chapman (Dog the Bounty Hunter), and the political movement for “cashless bail” are, for better or worse, part of our mass culture. But what is not as well-known to Americans today is the long history of bounties as a warfighting tool. During the colonial and early national periods of American history bounties were widely used, despite some notable drawbacks, to facilitate the waging of war by private parties. Warfighting bounties found particular use in asymmetric warfare, against both non-state and great-power actors, and were among the many policy options regularly used by early American statesmen.
Bounties in early American warfare provide a useful precedent for confronting the challenges of our present era. Understanding of the strengths, as well as weaknesses, of the bounty system in past practice can give modern statesmen a template to adapt the principles of the past for current problems.
Letters of marque, perhaps the most famous form of private warfighting in the early modern world, was historically a tightly-regulated state concern. Privateers operated in the maritime domain, subject to the law of nations, and the letters of marque issued by various governmental bodies provided the legal justification for seizing enemy merchant ships and cargo. Although in theory there might have been lots of overlap between privateers and pirates, in practice the legal framework of a letter of marque meant that the two differed greatly. Pirates targeted any vessel that they thought would add to their bottom line without overtly risking their heads. Privateers, conversely, had to operate within the confines of the law. Once a privateer made a seizure of an enemy merchant ship, the laws required that a case be heard before an admiralty court to ensure that the seizure was legal. If the merchant ship was condemned, then it and its cargo became the legal property of the privateer that seized it. Any proceeds from the sale of the vessel and its cargo would then legally flow to the owners and operators of the privateering vessel. All-in-all, this was a regulated system and was treated as such by all major and minor powers in the early modern period.
Federal courts were particularly attentive to following all the intricacies of international law when it came to adjudicating privateering cases, including handling of foreign prize cases. For instance, in the summer of 1804 the federal district court of Georgia considered Daniel O’Hara et. al. v. The Brig Chance and her Cargo. This case involved a French privateer’s capture of the British ship Chance while heading from Jamaica to Charleston, her recapture by a British privateer, a “ransom” of the ship and cargo to American co-partners in the original venture, and a subsequent re-recapture by a different French privateer in American territorial waters off of Savannah, Georgia. Needless to say, this was a particularly difficult case for the judges to consider, particularly as to which party ultimately owned the vessel and its cargo. But, many of the arguments concerned the legality of the letters of marque issued to the two different French privateers. Fraudulent paperwork in the first place would have resulted in an illegal capture and thus a return to the original owners. In the end, the federal court determined that both the initial capture and recapture were legal (the capture in American waters was illegal) and that the ship’s cargo would thus be split between the original owners and the British privateer. The successful resolution of this privateering case demonstrates that in practice, lower-level American courts were fully capable of adjudicating all of the legal considerations at work in complicated legal cases relating to privateering.
Unlike letters of marque, bounties were historically less well-regulated but more targeted in nature. The primary reason for this is that early American governments needed to add a financial incentive where there was none. Unlike privateers who could get rich by selling all manner of condemned cargoes in a globally-connected marketplace, bounties offered a cash prize for destroying a target, non-state or state, decided upon by the government. In this, anyone could theoretically claim a bounty. Furthermore, there were few, if any, legally-protecting documents such as a letter of marque that were recognized by all historical actors. From the perspective of their targets, bounties hunters were outside of law and custom.
Perhaps the most infamous use of bounties as a means of private warfare in early America is the scalp bounty. “Scalp bounties” were a promise of payment in exchange for a body part, usually in the form of a disembodied head or the hairy skin covering the top of a person’s skull. Although the name implies human targets, most “scalp bounties” in American history were actually non-military in nature and targeted wolves, squirrels, and other animals that interfered with agriculture. Towns, counties, and even colonial and state governments offered cash prizes for animal pelts as the destruction of these species was necessary in order for farms to operate. While useful for agriculture, it was in war where bounties a more significant role in shaping American history.
In colonial American warfare scalping was principally a tool used by Native Americans, with deep roots in pre-contact North America, but it was soon adopted by colonists during the brutal frontier wars of the seventeenth and eighteenth centuries. During the French and Indian War (1754-1763) a number of colonies including Massachusetts, Pennsylvania, and Virginia, all offered all offered cash payments for Indian scalps. The idea here was to offer a financial incentive for Americans and their Indian allies to take the fight to hostile tribes – both removing enemy warriors from the battlefields and terrorizing the survivors into submission. The effectiveness of these bounties is debatable, but the most successful colonial raid of French-allied Indians (John Armstrong’s 1756 Kittanang Expedition) was certainly animated by these deadly profits. Although scalp bounties were offered by several of the colonies-turned-states during the American Revolution, the practice of scalping took on a more barbaric hue in the minds of many Americans, especially when non-combatants, and especially colonial non-combatants, were targeted. As such, scalping became more associated in the American mind with Native American modes of warfare (which in turn justified harsh treatment against native nations). Although some American governmental officials continued to offer scalp bounties well into the nineteenth century, in these years this system was generally phased out as an American way of war. These nineteenth century scalp bounties have even obtained mythic status, even if the practice was continued on in Mexico mid-century as dramatized by Cormac McCarthy in Blood Meridian. Scalping was a potentially powerful total warfighting tool, able to terrorize opponents, even if it carried severe drawbacks in that it erased distinctions between combatants and non-combatants.
Less well known than scalp bounties, but more significant in terms of near-peer competition, were the American use of “torpedoes” during the War of 1812. Torpedoes (or more accurately naval mines) have a long history all their own, dating back to the invention of gunpowder. During the American Revolution, such devices were used by Americans to combat the British occupation of New York (used by David Bushnell’s submarine Turtle) and Philadelphia (the so-called “Battle of the Kegs”). However, it was only in the early nineteenth century that Pennsylvanian Robert Fulton’s “torpedoes” seized the imagination of statesmen, naval officers, and everyday people on both sides of the Atlantic.
Operating in Europe in the early 1800s, Fulton persuaded first France, and then Great Britain, to sponsor his experiments in submarine warfare. Given the strategic disparity between the two powers, France with land dominance and Britain with naval superiority, both sides desired Fulton’s inventions for their own use. Fulton offered Napoleon Bonaparte “submarines to attack British ships, mines to close off British ports and rivers, and finally, steamboats to transport French troops to England,” but he was rebuffed in these endeavors.1 Once Napoleon realized the usefulness of steamboats to navigate a cross-channel invasion of Britain, he sought out Fulton but it was too late as he had offered his services, with the hopes of a payout, to the Royal Navy instead. The British promised this young American mercenary a bounty if his naval mines worked, and the Royal Navy used them during a raid on the French fleet at Boulogne in October 1804. However, Fulton’s torpedoes failed to have any effect on the French fleet. The torpedoes were launched from too far out at sea to have any chance of striking the stationary French vessels.
Although Royal Navy officers certainly understood the potential usefulness of torpedoes, the strategic situation changed in 1805 so that they no longer felt the need to patronage Fulton. Napoleon abandoned his cross-channel invasion plans, deciding instead to deal with the Austrian and Russian Empires, and delt them a decisive blow at Austerlitz. Britain, likewise, enjoyed a strategic naval victory at Trafalgar so that there was no longer a significant threat from the French fleet. With the nature of the Napoleonic Wars changing, Fulton no longer had a European sponsor, and thus he turned back home to the United States to seek a state-partner for developing his torpedo system.
Compared to European powers, the United States faced a strategic deficit in naval power during the early nineteenth century. Although Americans certainly knew how to build great ships, as testified to by the USS Constitution, there was never any realistic hope that the country could ever match the Royal Navy in terms of men and materiel. As tensions with Britain rose in the period before the War of 1812, Fulton saw a real possibility that his home country could use his weapon designs to even the playing field. Thus in 1807, while developing a steam-boat on the Hudson River, Fulton undertook a series of public demonstrations to convince Americans of the usefulness of his naval mines to protect their ports and harbors from British warships which were then preying on American merchant ships to impress crew into the Royal Navy. In New York City Fulton used a mine towed by a rowboat to obliterate a stationary brig, gaining plaudits across the nation for seemingly developing an inexpensive answer to Britain’s navy. Although comparatively cheap, as Fulton wrote for the newspapers, his developing torpedo technology required financial assistance from the government. “Such engines cannot, like a steam boat, be carried into effect by the private funds of an individual, they must be sanctioned, supported and organized into a system by some government; and governors, unfortunately for the governed, being seldom men of science, have their doubts and fears of new projects, until ocular demonstration compel them to believe.”2 In his mind the torpedoes promised to do what privateers could not: target enemy warships. But his torpedo system was unable to work within the long-established market framework of privateering as the torpedoes would obliterate their targets, not capture them. Thus, the government would need to be convinced to financially support private weapons development.
Fulton and other weapons inventors would soon get the chance to gain financial support for their new technologies. When the United States declared war against Great Britain in June 1812, inventors rushed to the government with ideas on how to improve on Fulton’s general ideas in order to destroy British warships. These were so pressing that Congress and the “secretary of the Navy were annoyed with Torpedo projects.” Congress thus decided that the best way to let Fulton and his imitators deal with the Royal Navy was to issue a bounty for the destruction of enemy warships. This would, in effect, provide a financial structure so that private parties could participate in naval warfare absent the incentives offered by privateering. In March 1813 James Madison signed the following bill into law:
An Act to encourage the destruction of the armed vessels of war of the enemy. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, during the present war with Great Britain, it shall be lawful for any person or persons to burn, sink, or destroy, any British armed vessel of war, except vessels coming as cartels or flags of truce; and for that purpose to use torpedoes, submarine instruments, or any other destructive machine whatever: and a bounty of one half the value of the armed vessel so burnt, sunk, or destroyed, and also one half the value of her guns, cargo, tackle, and apparel, shall be paid out of the treasury of the United States to such person or persons who shall effect the same, otherwise than by the armed or commissioned vessels of the United States. Approved, March 3, 1813.
Colloquially known as the “Torpedo Act of 1813,” this law granted half the value of any British warship destroyed through the use of a non-standard explosive device. In response, a number of “torpedomen” including Fulton and others plied their newfound trade against British warships on the coast.
Licensing technology to interested parties was among the business strategies that Fulton and others pursued during the War of 1812 to weld patriotism and the profit motive. For instance, in surviving agreements Fulton agreed to supply torpedo schematics and technical device for an initial payment of $200 and an agreement to split the Congressionally-mandated bounty for any destroyed British warship. Fulton and his imitators, such as Elijah Mix and Joshua Penney, soon set out to launch all manner of torpedo attacks on Royal Navy vessels that ventured too close to the coast.
The Torpedo Act was a mixed success during the war. In terms of destroying enemy warships, the law was an abject failure. But, actions taken by American entrepreneurial warfighters after the passage of this law did force Royal Navy captains to change their behavior by anchoring further out at sea. In fact, the most successful torpedo attack was hardly a success at all. This venture was prepared by a private concern of New York City merchants and was headed by the predecessor of P. T. Barnum’s American Museum. Their group effort involved a small schooner disguised as a coasting vessel carrying foodstuffs. Secretly laden with explosives in the hold, the owners rigged a tripwire to a lower hatchway. When opened the entire schooner would explode. Their hope was that a British warship blockading New York would spot this vessel, the crew would quickly flee in a rowboat, and when the British brought this improvised bomb alongside their warship to unload the cargo it would explode. While this schooner did explode as intended, it only took a British boarding party along with it, their ship-of-the-line being too far off at the time of explosion.
Other torpedo attacks in Long Island Sound and the Chesapeake Bay failed to destroy British warships. These attacks did, however, alter the choices that captains made on where to station their ships. Too close to shore and they could easily fall prey to a hastily constructed naval mine, too far at sea and the blockade would become ineffective. As such, private parties unwittingly affected the nature of the British blockade, even if their principal goal was to garner a payout from destroying a Royal Navy warship.
The big downside to the torpedo actions during the naval war of 1812 is that they radically expanded the category of legitimate targets for British warships. As long as fighting was constrained between military targets there were customary rules about targeting civilians. However, once it was clear that it was American civilians carrying out these attacks in hopes of a cash payment, British naval commanders engaged in reprisals against civilian targets, particularly as they saw these communities engaging in warfare that stood outside the bounds of international law.
Given the lack of a strategic military upside, there were significant limitations to the bounty system as it existed in American history. That does not mean that this history has no implications for our current world. The chief weakness of the bounty system was that it largely existed outside of widely recognized international law. One of the main reasons why privateering saw success over the course of the seventeenth, eighteenth, and nineteenth centuries was because letters of marque were accepted by all minor and major powers. Bounties, on the other hand, were only really accepted by their countrymen, whereas most foes considered bounty hunters (whether scalps or torpedoes) as little better than murderers. Any modern use of the bounty system precedent would need to bring together the economic incentives of bounties with the legalistic framework of letters of marque.
For instance, no one would entertain implementing a scalp bounty today but there are roughly analogous policies that the federal government could implement to incentivize private parties to eliminate legal enemies during wartime. Such a policy would certainly operate differently from the current rewards offered by the State Department for information resulting in the detention of various bad actors. But, in order to ensure that there was no spillover to civilian targets, Congress would need to set in place sufficient rules to ensure that the targets were both legal and unlikely to result in collateral damage. However, the flexibility of private parties, able to wield the spirit of innovation spurred on by a significant monetary reward might result in previously unthought of methods to achieve national goals outside of our current police and military structures.
Unlike the scalp bounties, the Torpedo Act offers a better template from which Congress can both encourage the development of American military technology and deter peer adversaries. Given the proliferation of drone and missile technology, Congress could incentivize the development and use of this weaponry through the promise of a bounty for those who provide the tools to destroy enemy hardware. As a recent Congressional oversight panel has found, the Pentagon’s military procurement has been slow to implement new technologies. The Torpedo Act instead offers an alternative model through which the American public can incentivize up-and-coming defense contractors, such as Anduril Industries, to develop anti-ship and anti-materiel weaponry. Unlike Robert Fulton, Congress need not offer Palmer Luckey and other entrepreneurs a cash bounty for directly participating in armed conflict across the globe. But it is certainly possible to implement payouts to defense firms based on the destruction of enemy materiel on the battlefield. Let the cost to the taxpayer of new weaponry be associated with its battlefield effectiveness.
Additionally, should Congress implement some form of letters of marque in a future conflict, it is also likely that the traditional targets of privateers (enemy merchant ships) would not be readily available. These newfound privateers would thus need some financial incentive to participate in modern conflict. It is here that the bounty system could fill the gap between historical precedent and modern problem. Bounty payments for the seizure and destruction of enemy property would likely be sufficient to encourage modern privateers to operate within a legally well-developed, if neglected, framework.
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