Reviving The Constitution Part 2: Marque and Reprisal

Congress shall have the power...To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water... [Article I, Section 8]

Letter of Marque and Reprisal: A commission granted by the government to a private individual, to take the property of a foreign state, or of the citizens or subjects of such state, as a reparation for an injury committed by such state, its citizens or subjects. A vessel loaded with merchandise, on a voyage to a friendly port, but armed for its own defense in case of attack by an enemy, is also called a “letter of marque.” [From the American Wiki Encyclopedia of Law]

In the early years of the Republic, one of the greatest threats its citizens faced was that of the superior sea power of older nations, especially that of England. The terms "contraband" and "impressment" were of much significance in those days. The former was applied, by English naval captains, to any goods the captain wanted to seize from a ship flying some other flag. The latter word referred to the English practice of conscripting persons arbitrarily into its naval service, including citizens of other countries. Both these practices were in full flight in the years after the American Revolution.

American outrage at such seagoing invasions of Americans' rights and property caused Congress to grant a number of letters of marque and reprisal. Though the rationale for a letter of marque and reprisal was restitution for injuries done specifically to the bearer of the letter, a private vessel whose captain had been issued such a letter was a de facto element of the United States Navy, with all the powers and privileges a naval vessel would command. The letter pre-indemnified that vessel, its captain, and its crew against any legal complaint for seizures or sinkings on the high seas it might thereafter perform. (In American courts only, of course; the vessels and nations against which a privateer was expected to operate took a different view of matters.)

With the steady growth of the United States Navy, and owing in part to incidents of flagrant abuse, letters of marque and reprisal slowly fell into disuse. One of Congress's other powers, "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," gradually subsumed the duties that had previously been the domain of privateers. Yet the power to issue such letters remains in the Constitution. Its presence there helps to illuminate an early portion of our history and rise as a seagoing power. But more than that, it adds to our understanding of the legal and moral philosophy upon which the Constitution, and indeed all of American law, reposes.

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When the State is deemed supreme over all things, he who has suffered an injury must apply to the State for redress, usually through a court proceeding. (The old language for such a proceeding was "to petition for a writ of replevin.") To act on one's own was deemed lese majeste, and was therefore forbidden. Prior to the Revolution, that was the norm throughout the more advanced nations.

American legal philosophy, while it inherited much from its English ancestry, denied the supremacy of the State and the coordinated notion that only the State may act in redress of injustice. State supremacy on the "high seas" -- i.e., navigable waters outside the formal jurisdiction of any nation -- left private vessels utterly exposed to the predations of national navies. Thus, for the American conception to apply, private vessels had to have an avenue by which to enforce their rights by themselves.

The letter of marque and reprisal could also function as a way to commandeer private ships into the temporary service of the U.S. Navy. There was often an element of bargaining involved (such a letter could be given scope beyond the Navy's immediate needs) and sometimes of implied coercion (for example, the enemy could be told that a captain held such a letter even if he declined to accept one). In any event, the practice was employed in at least one well-known case: the Battle of New Orleans, in which pirate Jean Lafitte lent his men and vessels to the defense of the city against the British.

Though the United States has issued no letters of marque and reprisal since the Civil War, the power remains in Congress's domain.

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High Seas law is largely a matter of expediency. Congress does possess the power "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," but such a self-granted power inherently contends with the self-granted power of every other seagoing nation. What one nation regards as a "felony committed on the high seas," another might regard as its own prerogative within its "territorial waters."

In the main, such disputes are rare because of the supremacy of the U.S. Navy, incontestably the most powerful blue-water naval force in existence. No one wants to tangle with an American naval expedition. More to the point, America's use of its naval power has exhibited both restraint and respect for justice; other nations are largely satisfied to have us police the oceans.

But all such powers are limited, especially in geographical scope. The troubles that modern pirates have inflicted upon commercial shipping, especially in the waters east of Africa, have the theorists discussing the pros and cons of letters of marque and reprisal once again, despite the dust time has deposited on the practice. Beyond that, the steady advance of Mankind into the greatest of all oceans -- space -- could soon see letters of marque and reprisal become important in that venue.

Beneath all such discussions lies the notion of objective justice, and the right to act upon it for oneself, without the approval or assistance of some "public peace officer." Granted that when justice is "taken private," abuses can occur...but abuses are equally rife (and always have been) in the administration of public justice. In any case, that abuse is possible doesn't vitiate the conception of justice as the implementation of individuals' rights, which the letter of marque and reprisal confirms.