Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering

Abstract

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

Keywords: Marque, reprisal, privateer, admiralty, constitution, prize, seizure, neutral

JEL Classification: K19, K33