The Federal Marque and Reprisal Clause

The Congress shall have Power To . . . grant Letters of Marque and Reprisal. . . .

—John C. Yoo

Introduction

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.¹ These letters authorize private parties, known as privateers, to engage in reprisals for private, commercial gain.² The Constitution has two clauses concerning such letters. Congress has the power to grant them, but the states do not. (See Essay No. 78.) Although Congress has not issued a letter of marque and reprisal since the War of 1812, there is a scholarly debate about whether the Federal Marque and Reprisal Clause gives Congress authority over all forms of hostilities short of declared wars.³

History Before 1787

The word “Marque” is the French equivalent of “Reprisal,” and the original understanding of “Reprisal” is a seizure of property, or sometimes persons, of a foreign state as redress for an injury committed by that state.⁴ Thus, “Marque and Reprisal” is best understood as a single phrase. Sir William Blackstone observed that “letters of marque and reprisal” are “words in themselves synonymous.”⁵ Blackstone wrote that the power to issue such letters was “plainly derived from” the power to make war and that the issuance of these letters would generally end “in a formal denunciation of war.”⁶

During the Revolutionary War, the Continental Congress granted letters of marque and reprisal. These privateers seized $10 million of British goods, harming British commerce and hastening the colonists’ eventual victory. According to one scholar, “[t]he harm to British commerce was one of the most significant sources of internal dissent in Britain concerning continuation of the war.”⁷

The Articles of Confederation empowered Congress to grant these letters “in time of peace,” but only with the consent of nine states.⁸ One scholar has observed that such letters of marque and reprisal “issued ‘in times of peace’ could constitute state-authorized private warfare short of declared war.”⁹

The Constitutional Convention

On August 17, 1787, the delegates granted Congress the power to “declare war.”¹⁰ The following day, James Madison of Virginia proposed a list of “additional powers . . . to be vested in” Congress.¹¹ The list, referred to the Committee of Detail, included the power “to grant letters of marque and reprisal.”¹² Elbridge Gerry of Massachusetts agreed with Madison: “Something [should be] inserted concerning letters of marque, which he thought not included in the power of war.”¹³ Gerry’s proposal was adopted without debate.¹⁴

On August 28, the Federal Marque and Reprisal Clause was coupled with the prohibition. On September 5, the Committee of Eleven proposed that the “declare war” clause should be amended to give Congress the power to “grant letters of marque and reprisal.”¹⁵ The proposal was approved without debate.¹⁶

The Ratification Debates

There were few mentions of letters of marque and reprisal in Federalist and Anti-Federalist writings. In Federalist No. 41, Madison grouped together several “powers conferred on the government of the union” that relate to “security against foreign dangers.” These powers included “granting letters of marque.” This provision does not seem to have been particularly controversial, perhaps because a close analogue already existed under the Articles of Confederation.

Early Practice

Between 1797 and 1801, the United States was engaged in the Quasi-War with France. Congress authorized and the President issued letters of marque and reprisal to privateers. However, the privateers’ effect on that war was “negligible.”¹⁷ The United States had limited itself to fighting a “basically defensive” war. As a result, Congress had barred privateers from doing what they did best: attacking “ordinary” French merchant ships.¹⁸

Congress issued letters of marque and reprisal to privateers again during the War of 1812.¹⁹ Scholars have observed that “not a single American war aim had been attained” by the war’s end.²⁰ But that was not a failure of the privateers, who had “wo[rn] down the British fighting spirit” by “capturing more than $40 million” of British goods²¹ and have been described as “the only effective American offensive weapon in the war.”²² Justice Joseph Story explained that “[t]he power to declare war would of itself carry the incidental power to grant letters of marque and reprisal.”²³ Since the War of 1812, the United States has not issued letters of marque and reprisal.²⁴ In addition, the 1856 Declaration of Paris prohibits privateering as a matter of international law.²⁵ The United States has not ratified the Declaration, but it has upheld the ban in practice.²⁶

Over time, however, both the executive and legislative branches have considered using letters of marque and reprisal. For example, in the 1980s, a scandal arose over the funding of military operations in Nicaragua. During the so-called Iran–Contra controversy, members of Congress objected to President Reagan’s private financing of hostilities absent prior congressional consent.²⁷ However, Congress did not expressly invoke the Federal Marque and Reprisal Clause. Nor did members argue that the President should issue such letters without legislative approval.

Following the terrorist attacks on September 11, 2001, members of Congress proposed issuing letters of marque and reprisal to punish the “air pira[tes].”²⁸ Letters of marque and reprisal have been advocated to fight old threats like Somali piracy.²⁹ They have also been raised as a means to address modern threats like cyberattacks³⁰ and foreign adversaries like the Islamic State and Russia.³¹

Letters of Marque and Reprisal and the War Power

Article I, Section 8, Clause 11 lists three of Congress’s powers: “To declare War [see Essay No. 56], grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water [see Essay No. 58].” Scholars debate the relationship between these provisions and the war power.

One school of thought holds that the President lacks any power whatsoever to initiate hostilities, except perhaps defensively to repel invasions.³² Advocates of this approach contend that the Declare War Clause requires Congress to authorize wars, whereas the Federal Marque and Reprisal Clause requires Congress to authorize lower-level hostilities, whether by public forces or by privateers.³³

A second school of thought (which your author endorses) agrees that 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.³⁴ However, Congress has no power to control directly the President’s ability to initiate hostilities with whatever resources Congress has previously made available to him. As a result, the Federal Marque and Reprisal Clause is best read in conjunction with Congress’s power of the purse. Locating the Federal Marque and Reprisal Clause in Article I prevents the President from engaging in hostilities free from congressional control of resources, whether through public appropriations or through the issuance of letters of marque and reprisal to private actors.

Open Questions

• The text of Article I, Section 8, Clause 11 speaks only to Congress having the power to “grant Letters of Marque and Reprisal.” It does not address the role of the President in that process. Must the bill authorizing the letter be presented to the President under the Presentment Clause (Article I, Section 7, Clause 2), or could Congress also invoke the process in the Order, Resolution, or Vote Clause (Article I, Section 7, Clause 3)? (See Essay Nos. 36 and 38.) Would a statute that authorized a single House to approve a letter of marque and reprisal, subject to presidential approval, run afoul of INS v. Chadha (1983)?³⁵
• Can the President veto a bill authorizing a letter of marque and reprisal? Can he simply decline to issue the letter?
• Historically, the President has issued letters of marque and reprisal subject to statutory authority and guidance. Could Congress grant a letter of marque and reprisal through its own officers?
• Does the holder of a letter of marque and reprisal hold an “office under the United States”?³⁶ Does the Constitution’s Foreign Emoluments Clause bar a privateer from having a foreign title or receiving foreign emoluments? (See Essay No. 76.) Does the Constitution’s Incompatibility Clause bar a member of Congress from holding a letter of marque and reprisal? (See Essay No. 34.) If a member of Congress served in the Congress that increased the compensation attached to a letter of marque and reprisal, would the Constitution’s Ineligibility Clause bar that member from holding that letter?³⁷ (See Essay No. 33.) Is a privateer “appointed” to his position?
• Could Congress authorize victims of cyberattacks to “hack back” at their opponents even when doing so would otherwise violate a federal law like the Computer Fraud and Abuse Act?

1. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 206 (1996). ↩︎
2. Bas v. Tingy, 4 U.S. 37 (1800). ↩︎
3. Yoo, supra at 250–51. ↩︎
4. Id. at 250. ↩︎
5. 1 Blackstone 250; Grover Clark, The English Practice with Regard to Reprisals by Private Persons, 27 Am. J. Int’l L. 694, 700 (1933). ↩︎
6. 1 Blackstone 250. ↩︎
7. J. Gregory Sidak, The Quasi War Cases—And Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465, 475 (2005). ↩︎
8. Articles of Confederation, art. VI, § 4; id. at IX §§ 1, 6. ↩︎
9. Jules Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134 U. Pa. L. Rev. 1035, 1059 (1986). ↩︎
10. 2 Farrand’s 318–19. ↩︎
11. Id. at 321. ↩︎
12. Id. at 324, 326. ↩︎
13. Id. at 326. ↩︎
14. Id. at 328. ↩︎
15. Id. at 505, 508. ↩︎
16. Id. at 328; Sidak, supra at 477. ↩︎
17. Alexander Deconde, The Quasi-War: The Politics and Diplomacy of the Undeclared War with France 1797–1801, at 126–27 (1966), https://bit.ly/4mwshg0. ↩︎
18. Id. ↩︎
19. Dorothy Denneen Volo & James M. Volo, Daily Life in the Age of Sail 235 (2002), https://perma.cc/PCR2-YMN4. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. 3 Story’s Commentaries § 1170. ↩︎
24. William Young, A Check on Faint-Hearted Presidents: Letters of Marque and Reprisal, 66 Wash. & Lee L. Rev. 895, 897 (2009). ↩︎
25. Declaration Respecting Maritime Law Between Austria, France, Great Britain, Prussia, Russia, Sardinia and Turkey, Apr. 16, 1856, 115 Consol. T.S. 1. ↩︎
26. Todd Emerson Hutchins, Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates, 99 Calif. L. Rev. 819 (2011). ↩︎
27. H.R. Rep. No. 100-433, at 15–16 (1987). ↩︎
28. H.R. 3076, 107th Cong. (2001); H.R. 3216, 110th Cong. (2007); Robert P. DeWitte, Let Privateers Marque Terrorism: A Proposal for a Reawakening, 82 Ind. L.J. 131 (2007). ↩︎
29. Hutchins, supra. ↩︎
30. Ian C. Rice & Douglas A. Borer, Bring Back the Privateers, The Nat’l Interest (Apr. 22, 2015), https://perma.cc/D57T-FPEU; Paresh Dave, Some Companies Looking at Retaliating Against Cyber Attackers, L.A. Times (May 31, 2013), https://perma.cc/GKA4-EYFY; Commander Jonathan L. Still, Strategic Research Report: Resurrecting Letters of Marque and Reprisal to Address Modern Threats (Mar. 2012), https://perma.cc/UDX6-E3P8. ↩︎
31. H.R. 6869, 117th Cong. (2022). ↩︎
32. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War”, 93 Cornell L. Rev. 45, 88–89 (2007). ↩︎
33. Lobel, supra at 69–70. ↩︎
34. John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639, 1667–68 (2002); C. Kevin Marshall, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. Chi. L. Rev. 953, 974–75 (1997). ↩︎
35. 462 U.S. 919 (1983). ↩︎
36. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 340, 394, 418–19, 424 (2022); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part VI: The Ineligibility Clause, 64 S. Tex. L. Rev. 209, 252–53 (2025). ↩︎
37. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses, 63 S. Tex. L. Rev. 237, 279 (2024). ↩︎