The Original Understandings of the Capture Clause

19 Pages Posted: 13 Mar 2008 Last revised: 22 Aug 2013

See all articles by Aaron D. Simowitz

Aaron D. Simowitz

Willamette University College of Law; The Classical Liberal Institute at NYU School of Law

Date Written: March 12, 2008


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.

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

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: or

Aaron D. Simowitz (Contact Author)

Willamette University College of Law ( email )

Salem, OR 97301
United States
(503) 370-6840 (Phone)


The Classical Liberal Institute at NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States


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