Tenth Amendment Center

Letters of Marque and Reprisal: An Introduction

Several times during his tenure as a Congressman, Ron Paul suggested using letters of marque and reprisal to seize property and exact harm upon Osama bin Laden and other Al Qaeda officials. Offering a bill in October of 2001, Paul’s suggestion would have allowed:

“Congress to authorize the President to specifically target Bin Laden and his associates using non-government armed forces. Since it is nearly impossible for U.S. intelligence teams to get close to Bin Laden, the marque and reprisal approach creates an incentive for people in Afghanistan or elsewhere to turn him over to the [United States].”

Paul argued that the letters would be cost effective, produce motivation for locals to assist in capture, and protect liberty at home while hindering foes abroad.

He was mocked. He was ridiculed. He was criticized by those in his own party. His plan fell on deaf ears.

While commonly chided, Paul’s suggestion may very well have destroyed the political impetus behind the PATRIOT Act and blocked the emergence of the Department of Homeland Security. It very well may have worked to erode the military industrial complex.

How is that, you may ask?

Without wartime policy, these policies may never have been able to be effectively sold to the American public. Without perpetual war, there is usually little justification for a national government to deprive individuals of liberty.

In Article I, Section 8, the Constitution provides the following power to Congress:

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

The founders had the prophetic foresight to conclude that there may be times in which the United States wished to enact retribution against enemies without the necessity of waging a costly or expansive war. As many realized, war is a menace to individual liberty and a friend of an overreaching government.

During the Philadelphia summer of 1787, James Madison said that war “has the tendency to render the head too large for the body.” Madison concluded, “A standing military force, with an overgrown Executive will not long be safe companions to liberty.” Madison was not alone in this belief.

The argument of Madison and others illustrated the potential for letters of marque and reprisal to be used as an alternative. The letters themselves would allow for privateers (vessels which were equipped and commissioned by private individuals) to attack and capture enemy vessels, confiscate property, or engage in military hostilities. The letters served and a beneficial way to augment naval forces and produced positive results in the early stages of the republic.

Neither the Republicans nor the Federalists devoted much energy to attacking the policy of letters of marque and reprisal. Opponents of the Constitution did not fear their presence, understanding that it would be the power of Congress rather than the executive to propose them. In comparison to their tendency to believe that the executive would rule with unilateral war power, the letters seemed inconsequential. Supporters of the Constitution also understood their presence as a power. In The Federalist #41, Madison called the letters a “palpable necessity” and wrote that they provided “security against foreign danger.”[1]

Throughout the War of Independence, privateering created a major source of commerce and employment for many states. The practice proved significant, leading to the seizure of about 300 British ships during the war.

During the War of 1812, Madison used such letters to oppose the British, realizing that the United States lacked a sophisticated navy to oppose a world power.

Under the Constitution as ratified, the President was only to become the commander of the military in times where war was declared in the explicit by Congress. Understanding these premises, Alexander Hamilton made this clear in The Federalist #69:

 “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.[2]

This passage serves as farther proof that the President was to act in a conciliatory manner toward Congress, respecting the legislature as the body to make such regulations over wartime policy.

Unfortunately, these limitations on the President have been undermined by the War Powers Act and the incremental transferal of war powers to the executive during the 20th Century. These trends should be rejected outright. Allowing the President to unilaterally control all aspects of a war’s declaration, execution, and conclusion has degraded the original understanding of the Constitution. Utilizing letters of marque and reprisal would serve to threaten this negative development and reverse these harmful shifts.

Understanding letters and the separation of powers doctrine, the first executives were forced to abide by this explanation.

During the Quasi War, John Adams took no independent action to escalate hostilities against the French. Instead, Congress passed a series of acts and Adam complied with the statues that were passed. When Adams became lenient and diverted from these guidelines, he was reprimanded by the Supreme Court when he attempted seize a vessel sailing from a French port. Congress had only allowed him to act to seize ships heading to French ports.[3] The President was admonished.

In the same spirit, Thomas Jefferson acted in a characteristically deferential manner when dealing with Congress in relation to the First Barbary War. After approval was given by Congress to protect American ships and citizens against aggression, Jefferson announced that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”[4] Evidently, Jefferson understood that the restrictions placed upon his power to conduct military hostilities were clearly defined during the Constitution’s ratification.

The founding generation and the first Presidents understood that unending war was the friend of tyranny rather than liberty. As such, they realized that letters of marque and reprisal would be an effective way to impede enemies and protect liberty at the same time. A massive amount of premonition went into these conclusions, and these perceptions made the states realize that the letters could be beneficial in a free society.

In today’s political environment, many are unaware of what letters of marque and reprisal are or why they were proposed. However, history is evidence to the fact that they served as an essential mechanism to avert war and punish adversaries in the absence of military aggression. Ron Paul realized that, and made an offering which would have preserved liberty and protected the states simultaneously.

Over 200 years since they were last used, the time is suitable for letters of marque and reprisal to find their way back into popular civic understanding. Our republic yearns for it, if only for the sake of liberty and fiscal advantages they offer.

[1] The Federalist #41, Alexander Hamilton, James Madison, and John Jay, The Federalist, Edited by Jacob E. Cooke (Middletown: Wesleyan University, 1961), 268 -278.

[2] The Federalist #69, Alexander Hamilton, James Madison, and John Jay, The Federalist, Edited by Jacob E. Cooke (Middletown: Wesleyan University, 1961), 465.

[3] Presidential War Powers: The Constitutional Answer, Tom Wood’s Liberty Classroom, March 31, 2014; available at  http://www.libertyclassroom.com/warpowers/

[4] Ibid.