Marque and Reprisal
The Congress shall have Power To ...grant Letters of Marque and Reprisal....
At the time of the Founding, the sovereign of any nation could authorize holders of “letters of marque and reprisal” to engage in hostile actions against enemies of the state. The common understanding of “Reprisal” is a seizure of property (or sometimes persons) of a foreign state as redress for an injury committed by that state. Because the word “Marque” is the French equivalent of “Reprisal,” the constitutional term “Marque and Reprisal” is best understood as a single phrase.
The only serious debate over the meaning of the Marque and Reprisal Clause is not whether it extends to authorizing private parties (known as “privateers”) to engage in reprisals for private, commercial gain. Rather, it centers on whether the clause gives Congress authority over all forms of hostilities short of declared wars.
That debate mirrors the larger war powers debate over the Declare War Clause. Supporters of congressional power construe the Declare War Clause and the Marque and Reprisal Clause jointly to cover all forms of armed conflict, from covert action to a full and open armed conflict. Under this reading, the President lacks any power whatsoever to initiate hostilities (except perhaps defensively to repel invasions), no matter their scope. They contend that the Declare War Clause requires Congress to authorize wars, whereas the Marque and Reprisal Clause requires Congress to authorize lower level hostilities, whether by public forces or by privateers.
Supporters of presidential war powers on the other hand, maintain that the Marque and Reprisal Clause was originally understood as a narrower power to vest sovereign authority to use force against enemy nations with private parties. The argument is that Congress could authorize privateers to engage in military hostilities, with neither government funding nor oversight (other than after-the-fact judicial determinations of prizes by the prize courts). The Marque and Reprisal power allows Congress to “outsource” American warfighting capabilities to private parties, which would have held out great attraction to some revolutionary Americans who feared standing armies and navies.
Thus, the supporters of presidential war powers contend, the Marque and Reprisal Clause is best read in conjunction with Congress’s power over the purse. Congress has exclusive authority over all funding of military hostilities, whether through public appropriations for a national military or letters of marque and reprisal for private actors. But Congress has no power to control directly the President’s ability to initiate hostilities with whatever resources Congress has previously made available to him. Under this framework, locating the Marque and Reprisal Clause in Article I prevents the President from engaging in hostilities free from congressional control over resources, whether in the form of public appropriations or the issuance of letters of marque and reprisal to private actors. The clause thus helps fill a hole that would otherwise exist in Congress’s control over the “sinews of war.”
Outside of the law reviews and scholarly debates over the allocation of war powers, the Marque and Reprisal Clause has played little if any role in modern times. The United States has not issued letters of marque and reprisal since the War of 1812, and has not seriously considered doing so since Andrew Jackson’s presidency. In addition, the 1856 Declaration of Paris prohibits privateering as a matter of international law. Although the United States has not ratified the Declaration, it has upheld the ban in practice.
During the Iran-Contra controversy of Ronald Reagan’s administration, Members of Congress objected to the President’s private financing of hostilities, absent prior congressional consent. Congress did not expressly invoke the Marque and Reprisal Clause, however, in objecting to executive branch action. The recent emergence of piracy has led some to propose a resurrection of letters of marque and reprisals, which would give private actors an incentive to protect commercial shipping while allowing the U.S. Navy to focus on more important missions.
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Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800)