Letters of Marque Are Still in the Constitution and Here Is Why They Matter

Somewhere in the Constitution, between the power to declare war and the power to raise armies, sits a phrase that sounds like a pirate movie. Letters of marque and reprisal. It has never been repealed, it has never been amended, and it has been sleeping in plain sight for more than two centuries while presidents and think tanks argued about everything around it.

The only thing more surprising than finding it there is how many seminars on presidential power manage to skip it. Do not smile too fast. That phrase is the best evidence we have that the men in Philadelphia meant Congress to control the use of force, all of it, from the great war to the small raid. Once you understand what a letter of marque was, the modern habit of calling a bombing campaign "not really a war" starts to look like what it is: a loophole the Framers closed before anyone thought to open it.

What the clause says

Article I, Section 8, Clause 11 lists three powers together. Congress shall have power:

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

Read it the way a lawyer of 1787 would. Three things are in one sentence because they belong to one family. Declaring war is the full, formal act. Granting letters of marque and reprisal is the partial act: it authorizes private citizens, or lesser forces, to take enemy property or to answer a particular injury. Making rules for captures is the law of what happens to what is seized. The sentence runs from the largest use of force to the smallest, and the Constitution hands every step of it to the legislature.

A letter of marque was a government license for a private ship to attack the merchant vessels of a named enemy and keep the prize. A letter of reprisal was a license to take property from the subjects of a nation that had wronged yours, as a way of recovering the loss without a full war. Blackstone, whom every educated American of the Founding read, tied reprisals to the sovereign's prerogative over war and peace, so that private persons could not judge their own grievances and seize property on their own say-so. The Framers knew that vocabulary cold. They did not put it in the text as decoration.

The Constitution also protects the clause from the other direction. Article I, Section 10 says that no State shall "enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal." The states may not do it. The president is not given it. Only Congress holds it. That is three clauses of structure pointing the same way.

Why the Framers wrote it down

The Confederation had been a lesson in what happens when the means of war are scattered. States had issued commissions, fleets had been improvised, and the nation's policy toward the sea had been whatever the nearest governor decided. The Framers wanted one hand on the lever, and they wanted it to be the hand closest to the voters.

Here is the part that matters most. The Convention did not trust any one man with the choice between peace and war. Madison's notes of the debate of August 17, 1787 record the change from giving Congress power to "make war" to giving it power to "declare war." The stated purpose was to leave the executive the ability to repel sudden attacks, not to commence hostilities. Notice what this means for the letters of marque clause. If declaring war was the great decision, then the lesser decisions, the reprisals and the limited hostilities, were never carved out for the executive. They were placed right beside the declaration, in the same sentence, under the same hand.

George Mason, in that same debate, spoke against giving the executive the power of war. By the notes' account, he wanted the government slow to make war and quick to make peace. The instinct is clear and it is ours: war should be hard to start. Today it is easier to start than to get a permit for a backyard deck, which tells you how far the practice has drifted from the text.

I would put it this way. The clause is not a quaint license for privateers. It is a rule of jurisdiction. It says that when this nation chooses to answer force with force beyond self-defense, the choice is made in Congress, in public, with a vote.

Privateering in the Revolution

America was born using this tool. In the spring of 1776, months before the Declaration was adopted, the Continental Congress authorized the fitting out of privateers against British commerce: a resolution of March 23, then rules and blank commissions for letters of marque on April 3. The new country had almost no navy. It had an enormous merchant marine, thousands of sailors, and a ruthless need to hurt the enemy's supply lines cheaply. So it licensed private owners to do what a navy would have done, and it let them keep a share of the profits.

The arrangement worked because it aligned incentives. The government did not pay for the ships, the owners took the risk, and the captures hurt British trade and supplied American stores. Congress wrote rules for prize courts, so that a seizure was adjudicated and not simply a robbery at sea. That was the point of the third phrase in the clause: rules concerning captures. A privateer with a commission and a prize court was a lawful instrument of the state. A privateer without one was a pirate. The difference was a piece of paper signed under legislative authority.

The lesson for us is simple. The Revolution was fought in part by citizens operating under congressional authority, with lawful limits and lawful procedure. It was war outsourced, but never war without law.

The Quasi-War, and "limited" does not mean "unauthorized"

The best proof that the Founding generation understood the clause as a check on limited hostilities comes from 1798. Relations with France had collapsed after the XYZ Affair, and French warships and privateers were seizing American merchant ships. President John Adams did not declare war and did not send the Navy out on his own say-so. Congress passed a series of statutes in 1798 rebuilding the Navy and authorizing American forces to use force against French armed vessels, among them the act of July 7, 1798. It was a war at sea that never carried the word "declared."

The Supreme Court spoke to it in Bas v. Tingy (1800). The justices described the conflict as a limited or "imperfect" war, and they held that it was a war in the legal sense because Congress had authorized it. Justice Washington's reasoning was that Congress could authorize a war that was perfect, meaning declared, or imperfect, meaning authorized without a declaration, and either one was war.

Then came Little v. Barreme (1804). Congress had authorized the seizure of American ships bound to French ports. President Adams's instructions went further and told naval officers to seize ships sailing from French ports too. Captain George Little followed the president's orders and seized a Danish vessel that was sailing from a French port. Chief Justice Marshall held that the president's instructions could not enlarge what Congress had permitted, and Captain Little was liable in damages.

Put those two cases together. Congress decides whether a limited war exists, and it sets the limits. The president, even in the middle of a naval conflict, cannot stretch those limits by order. A student who knows only these cases already knows more than most television panels about who holds the power in a small war.

The War of 1812 and the last great age of privateers

In the War of 1812, Congress declared war on June 18, 1812, and the government issued letters of marque on a large scale. Hundreds of American privateers went to sea, and they took many British merchant ships while the small United States Navy fought its famous single-ship duels. The privateers did something no budget would have allowed: they forced British insurers and shippers to pay, and to pay again, for convoys.

By the end of that war, though, the world was changing. Naval powers began to regard privateering as a nuisance that blurred the line between soldiers and robbers, and the great states of Europe wanted regular navies to hold the monopoly of force. That led to the document most Americans have never heard of.

The Declaration of Paris and the treaty America never signed

In 1856, at the close of the Crimean War, the major European powers met in Paris and issued a declaration with four rules of maritime law. The first was blunt: "Privateering is, and remains, abolished." The others protected neutral goods under an enemy flag, protected enemy goods under a neutral flag, and required blockades to be effective to be binding. Britain, France, Russia, Austria, Prussia, Sardinia and the Ottoman Empire were among the first signers, and dozens of others adhered over time.

The United States declined. Secretary of State William Marcy's reasoning was that the abolition of privateering would help the strong naval powers and hurt a country whose navy was small and whose merchant fleet was large. He proposed an addition: that all private property at sea, not merely that of neutrals, should be exempt from seizure. The European powers would not agree, and America stayed out.

That decision reflected a clear-eyed conservative principle: a nation should not give away an option it may need to defend itself, in exchange for a promise it cannot enforce. It also shows that the clause was a live instrument. In 1861, the Confederacy announced it would issue letters of marque, and President Lincoln answered by proclaiming a blockade and declaring that privateers would be treated as pirates. The Union did not sign on to abolish privateering as a principle, but the war was fought by regular navies. When the Spanish-American War came in 1898, the United States announced a policy of avoiding privateering and observing the Paris rules, though it had never formally adhered to the treaty. The clause has been left unused since, by choice, not by repeal.

Notice the distinction. The Constitution gave Congress the power. Policy decided not to use it. A power that the legislature has chosen not to exercise is not a power that has vanished, any more than the power to impeach has vanished in a decade with no impeachments.

Objections, stated fairly

The strongest objection is that the clause is obsolete. Here is the best version of it. Privateering ended because it proved a bad instrument: it blurred combatants and civilians, it invited abuse, and it made incidents between neutral and belligerent states more likely. Modern law, so the argument goes, treats the Declaration of Paris principle as customary international law even for countries that never signed. And the Constitution lives in the world as it is, not as it was in 1787.

I will answer in four points.

1. Obsolete practice is not obsolete structure. Nobody argues that the Third Amendment's ban on quartering soldiers in peacetime houses has stopped being a constitutional principle because the Army no longer asks. The clause is a clue to the structure. Congress controls limited hostilities. That structure remains whether or not any ship ever sails under a commission.
2. The text still binds. If custom could erase a clause, the president could erase every clause by habit. The proper way to retire a power is to amend the Constitution, which is the road the Framers left open in Article V. The fact that no one has tried tells you what the amendment would cost its sponsors.
3. Custom runs both ways. If international custom now forbids privateers, then Congress has made a policy choice to honor it, which is a choice only Congress can make. That is my whole point.
4. The substance of the clause is alive in other forms. Every time the executive claims that a strike, a blockade or a raid is "not war" because it is limited, it is arguing that limited force escapes Congress. The clause says the opposite, and it says it in the same sentence as the declaration.

What the modern proposals actually do

Every so often, someone in Congress remembers the clause. After the attacks of September 11, 2001, Representative Ron Paul introduced a bill, H.R. 3076, the September 11 Marque and Reprisal Act of 2001, to authorize the president to issue letters against the terrorists responsible. It did not pass. He returned to the idea later, and other writers have proposed using the clause against Somali pirates or against criminal hackers who operate from states that shelter them.

Take the proposals seriously, and then notice what they would require. Any modern version would need a statute from Congress naming the enemy, setting the limits on targets, setting rules for evidence and for the disposal of anything seized, and creating accountability for abuses. In other words, it would need the very thing the Founders asked for: a vote, a text, a set of limits, and a public record.

That is why I call the clause useful and not merely historic. Whether privateering against pirates or hackers is wise is a prudential question, and reasonable conservatives will differ. The bureaucratic risk is real. Contractors with a license to seize and a profit motive are not obviously better than the Navy, and cyber "hack back" ventures could trigger incidents with nations that have their own ways of hitting back. But the constitutional answer is not in doubt. If America is going to use letters of marque, Congress must authorize them. And if America is going to use limited force in any other form, Congress's role is the same.

The clause has not been repealed or amended, and it is still in the book. Anyone who wants to use it again would have to go through Congress.

How to read it against current habits

Here is the test. Take any modern use of force short of full-scale war: a naval blockade, a missile strike on a foreign facility, a sustained bombing campaign, a cyber operation that destroys property. Then ask the questions the clause asks.

• Did Congress authorize the action, in words, in a statute?
• Did Congress define the enemy and the limits?
• Is there a rule for what is seized, destroyed or held?
• Is the executive acting inside those limits, as Captain Little was supposed to?

Where the president is repelling a sudden attack on the United States or its forces, the Framers left that power in his hands, and nobody serious disputes it. Where he is choosing to start or sustain hostilities, the Marque Clause says that the decision is not his alone. The distinction is between defense and initiative, and it was drawn at the Convention in one word change.

The answer from the executive branch of both parties for decades has been to rely on broad statutes written for one purpose and stretch them to another, or on a theory of inherent power that the text does not contain. Anyone who cares about the rule of law should notice that this habit does not stay with one party. The executive power you lend to a president you like is the executive power he hands to the next one. The men who wrote Clause 11 understood that, which is more than can be said for a good many briefing memos, and they put the check in the first Article, where it could not be missed.

For a wider look at who holds which war power, see Commander in Chief Means Less Than Presidents Claim and More Than Critics Say. For the case where a president fought before Congress could meet and what the Court said, see The Prize Cases of 1863 and How Lincoln Fought a War Before Congress Met. For the Court telling a wartime president no, see Youngstown Sheet and Tube Is the Case That Tells a President No in Wartime. And for the modern question of a hack that might count as an act of war, see Cyberwar Has No Declaration, So When Is a Hack an Act of War. The power of the purse, the other great check, is told in How Congress Ended a War with the Purse, the Case-Church Story of 1973, and the 2001 authorization that still carries so much is covered in Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem.

What it means for a family

This is not an antiquarian exercise. If you have a son or daughter in uniform, or you expect to, the question of who decides to send them is the most important constitutional question you will ever ask. In a republic, the people who send the troops must answer to the people who bear the cost. The clause makes that answerable person your representative, and the Senator you can write to, not an unnamed official you cannot reach.

There is also a conservative principle of restraint at stake. Wars that start with a vote tend to have goals, limits and an exit. Wars that start with a press conference tend to have a name and a mission that is hard to define. Power that has to be justified to the people's representatives is power that is used more carefully. That is not weakness. It is why a free country can use force with confidence and with a moral claim behind it.

The case in brief

1. Article I, Section 8, Clause 11 places declaring war, granting letters of marque and reprisal, and making rules for captures in one sentence, under one branch: Congress.
2. Madison's notes of August 17, 1787 show the Convention changing "make war" to "declare war" only to leave the president room to repel sudden attacks, not to begin hostilities.
3. The Quasi-War of 1798, Bas v. Tingy (1800) and Little v. Barreme (1804) show that limited war is still war, that Congress sets its limits, and that a president cannot stretch them by order.
4. America never signed the 1856 Declaration of Paris and has chosen, not been forced, to leave the power unused. A power unused is not a power repealed.
5. Any modern proposal to use the clause against pirates or hackers must come through Congress, which is exactly what the Framers wanted for every limited use of force.

What you can do: read Article I, Section 8 yourself at the Constitution page and then ask your own representative, through the my-representatives page, whether he or she believes a military strike without a vote from Congress is lawful.