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The Original Understandings of the Capture Clause


Aaron D. Simowitz


New York University (NYU) - School of Law

March 12, 2008

DePaul Law Review, Vol. 59, No. 1, 2009

Abstract:     
The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a hundred and eighteen cases before it was dissolved by Article III of the Constitution.

The federal government, first under the Articles of Confederation and then under the Constitution, was responsible for prescribing the rules under which enemy ships and prisoners could be taken. The value of captured ships was the chief means by which the early navy and privateer system was financed. However, the early law of capture also concerned captured persons, who could sometimes be redeemed or ransomed for head money. Later scholars have correctly concluded the capture of property was more important to the Framers of the Constitution. However, they have also assumed that the Capture Clause did not cover people. This is not the case.

This paper will show that the received wisdom that the Capture Clause covers only property is based on a faulty and possibly disingenuous statement dating from 1833. This paper will also show that the received wisdom is inconsistent with the era's admiralty law and with Congressional practice. The Framers made prescribing rules concerning captures on land and water an enumerated power of Congress. This power covered enemy persons as well as property.

Number of Pages in PDF File: 19

Keywords: captures, prize, constitution, torture, prisoners, maritime, admiralty

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Date posted: March 13, 2008 ; Last revised: August 22, 2013

Suggested Citation

Simowitz, Aaron D., The Original Understandings of the Capture Clause (March 12, 2008). DePaul Law Review, Vol. 59, No. 1, 2009. Available at SSRN: http://ssrn.com/abstract=1105417 or http://dx.doi.org/10.2139/ssrn.1105417

Contact Information

Aaron D. Simowitz (Contact Author)
New York University (NYU) - School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6720 (Phone)
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