By: Kenneth Barden *
Date: April 20, 2016
A little-noticed provision of the United States Constitution established the foundation for the economic sanctions in force today. Article I, Section 8, of the Constitution authorizes Congress, “To… grant Letters of Marque and Reprisal …;” , Thus empowering the legislative branch to authorize private parties to seize and hold assets of foreign enemies. This grant of authority played an important role in the early days of the new nation and helped the U.S. combat foreign aggression.
What are letters of ‘Marque and Reprisal’?
In general terms, a letter of marque is the grant of authority by one country to a private party to cross into the territory of another country to seize a ship deemed by the authorizing country to be an enemy vessel or one that has traded with an enemy.
A letter of reprisal authorizes the party seizing the vessel to take it to a home port. Although technically separate authorizations, the two are usually issued together.
Issuance of these “letters” by several nations dates to the 12th Century and was commonplace from 1691 to 1814. The requirement that they be issued by governments was intended to bring legal attributes or a color of authority to what were essentially retaliatory acts. A merchant whose property had been stolen could apply to the sovereign for a permit to take limited action for restitution, not revenge, against specified agents.
In wartime, sovereigns would issue letters of marque and reprisal that were good against any enemy ship. Many weaker nations found them effective against stronger countries by leveraging the added naval power of private sea vessels. These also permitted a type of economic warfare short of deploying a navy and also increased defense spending. This delegation of authority became known as “privateering”, or the use of private means to wage public wars. In some cases, privateers operated alongside regular naval forces for the primary purpose of annoying or inconveniencing the enemy. The seizure of merchant vessels by privateers was often in retaliation for hostile acts, which often made it beneficial to both the privateer and the sovereign granting the authority. The booty and value of the ship were usually divided between both parties. Often, the crew members of the seized ship were forcibly put into the service of the sovereign and the ship was refitted to its military naval forces.
Use of Letters of Marque and Reprisal During American Revolution
During the American Revolutionary War, Britain issued letters against colonial merchant ships to interrupt trade in arms and other needed provisions. Similar letters were issued by colonial governments against British vessels. On April 3, 1776, the Continental Congress, lacking sufficient funds to strengthen its navy, authorized privateers to attack and seize British ships. These captures supplied funds to fund the war and provide an incentive to the privateers because goods the privateers captured were typically divided between the ship’s owner and the government that issued the letter. There was, however, a great deal of risk to privateers. While they enjoyed immunity for their actions from the government that granted the letters, those captured by other nations were treated as prisoners of war. By the end of the war, it was apparent that the privateers’ work helped reduce the impact of British naval forces and provided the colonies with resources to fund the war.
Under the Articles of Confederation
After the Revolutionary War, letters of marque and reprisal were recognized by Article VII, Paragraph 5 of the Articles of Confederation. They allowed individual states to issue letters of marque and reprisal only against countries against which Congress had declared war, except that States were permitted to issue the letters on waters within their own territory where pirate infestation was so large that immediate action was needed. Article IX, Paragraph 1 of the same Articles stated that only Congress could grant letters of marque and reprisal in peacetime.
Letters of Marque and Reprisal in the U.S. Constitution
Letters of marque and reprisal were a topic of debate in the time leading up to the Constitutional Convention in 1787. James Madison, who later used the letters during as president, wrote about the restrictions on the powers of the states in Federalist Papers No. 44. He recognized that the use of letters of marque and reprisal was as an instrument of foreign policy, but said the individual states should not be empowered on their own to issue them or to otherwise sponsor privateers. Madison favored limiting this power to Congress, reasoning that this was consistent with not allowing the states to conduct their own foreign policy. The framers of the U.S. Constitution essentially adopted this position by limiting the authority to issue the letters to Congress under the “war powers” of Article I, Section 8, Clause 11. (“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;…”)
Early use of Letters of Marque and Reprisal in protecting United States trade
The new American republic’s early economy relied largely on maritime commerce. U.S. merchants developed markets for American-made goods and resources in Europe and the Middle East. Transporting goods across the Atlantic took many days and posed many risks to merchant vessels. As a fledgling nation, the U.S. lacked funds with which to build a large navy and relied on privateers to protect its coasts and trade routes. International disputes required the U.S. to invoke forms of economic sanctions, including the granting of authority through letters of marque and reprisal.
The XYZ Affair and the Quasi War
The XYZ Affair, a scandal that erupted during President John Adams’s administration, involved demands by French government officials to American emissaries for bribes as a condition of meeting with French Foreign Minister Charles Maurice de Talleyrand. At the time, bribery was a common diplomatic practice of many countries. The Americans deemed the $250,000 demanded for Talleyrand and an additional $12 million as a “loan” to the French government as exorbitant and outrageous. Congress and the American public were outraged. Senator Robert Goodloe Harper, of Maryland, coined his famous response in response, “Millions for defense, but not one cent for tribute. ” Many people urged war against the French.
Adams was able to avert a declaration of war by his diplomatic efforts to negotiate peace with France. Negotiations broke down and an undeclared war, known as the Quasi-War, erupted between the two countries. There were few engagements, mainly at sea. France made great use of letters of marque and reprisal, seizing more than 2,000 U.S. merchant vessels. While peace was restored by an 1800 convention known as the Treaty of Morfontaine, the experience influenced the U.S. government about the power of the letters in leveraging sea power.
President Thomas Jefferson preferred diplomacy to war in his approach to international relations. Early in his administration, he sought to reduce the size of the armed forces fearing that a large army and navy would invite dictatorship. Since virtually all economic trade between the US and other nations was via maritime channels, mercantile ships were often targeted on all sides of conflicts, by naval forces and privateers. Jefferson sought other means to protect American shipping.
The First Barbary War
For years, Barbary pirates and privateers had harassed foreign ships plying the coast. They would capture vessels, seize cargoes and hold crews for ransom or for use as slaves. Along North Africa’s Barbary Coast, pirates acting for the rulers of Algiers, Morocco, Tunis and Tripoli, would commandeer cargo ships to extort money. Before the American Revolution, ships from the American colonies were generally safe from pirates because Great Britain paid the pirates the extortions they demanded. After the colonies won independence from Britain, U.S. ships lost the protection of the British payments. This loss forced early U.S. governments to assume the payment of “protection money” to the pirates.
As U.S. trade with Europe grew, more shipping by U.S. mercantile vessels into the Mediterranean was required. Leaders along the Barbary Coast saw this opportunity to extort larger tributes for safe passage of ships. In 1802, after the Pasha of Tripoli increased his demands, Jefferson refused to pay the new amount and sent ships to the North Africa coast to confront these threats. Tripoli declared war on the U.S., the first of two wars known as the Barbary Wars. The First Barbary War, from 1801 to 1805, involved extensive use of letters of marque and reprisal, on both sides of the conflict. Ships were seized by all sides. One of the well-known ships, the USS Philadelphia, was first seized by Tripoli and later recaptured by the Americans.
After four years of fighting, the US signed a treaty with Tripoli. The U.S. agreed to pay a ransom of $60,000 and Algiers released the hostages. To ensure safe passage of its vessels, the U.S. continued to pay extortions of as much as $1 million annually for 15 years, an annual sum that was equivalent to 20% of the total U.S. government revenue in 1800!
Trade limits tried during the Napoleonic Wars
In addition to the combat with the Barbary pirates, United States maritime interests became entangled in Napoleon’s war with Britain. During the Napoleonic Wars, a form of economic sanctions known as the “Continental Blockade” was enforced. Britain blockaded French coasts to prevent shipping into France. Napoleon I retaliated by issuing the Berlin Decree in May 1806, which imposed an embargo against British trade, prohibiting the import of British goods by European allies or dependent on France. All trade and connections were severed, even the mail.
Napoleon planned to defeat Britain by choking its vital ability to trade. By isolating Britain from trading with its partners, Napoleon reasoned that Britain’s economy would collapse. Mercantile interests in many countries, including the U.S., ignored the embargo. However, U.S. naval power was too weak to adequately protect American merchants. To capitalize on this, Britain and France captured U.S. ships. Britain detained more than 1,000 U.S. sailors and forced them to fight on its side during the war. This infuriated the American people and prompted calls for retaliation. Tensions intensified, culminating in 1807 when the British frigate Leopard stopped the American ship, Chesapeake, off the Virginia coast and demanded to search it. The Chesapeake’s captain denied the request and the British ship opened fire, killing three Americans and injuring more. Jefferson ordered all British ships to leave U.S. territorial waters, but the British continued detaining American ships.
Wishing to avoid armed conflict that would deplete scarce resources, Jefferson sought “peaceable coercion” and asked Congress to enact the Embargo Act of 1807, which stopped all exports of U.S. goods. He felt that British and French reliance on American products would convince one or both nations to negotiate with the U.S. In enforcing the embargo, the U.S. relied on privateers, issuing letters of marque and reprisal to complement US naval forces.
U.S. efforts to force negotiation by France or Britain were unsuccessful. The impact on Britain from the Continental Blockade and the U.S. Embargo Act was limited. Enforcement of the embargo was weak and encouraged British merchants to seek new markets. The availability of Latin American markets (which were not subject to the embargo) to Britain and France provided significant resources so that British merchants could smuggle goods into Europe. Napoleon could not establish an effective system of customs enforcement to prevent the smuggling. In the end, the Continental Blockade and Jefferson’s attempts to pressure France and Britain by protecting American economic interests through trade prohibitions, were ineffective as weapons of economic warfare.
War of 1812
During the War of 1812, the U.S. Congress, on June 26, 1812, enacted “An Act concerning Letters of Marque, Prizes, and Prize Goods”. This law, among other things:
- Authorized the President of the United States to issue, revoke and annul letters of marque and reprisal in support of the war between the U.S. and the United Kingdom;
- Established procedures governing privateering, including a formal process for interested parties to apply for designation as a privateer:
- Required applicants to file a penal bond of between five thousand and ten thousand dollars (based on the size of crew) to ensure that the privateer would operate in accordance with the authority granted by the U.S.;
- Established the process for forfeiture of seized vessels and the distribution of proceeds; and
- Established US criminal jurisdiction over persons violating the terms of authority.
Once this law was enacted, many merchant vessels set out to sea. A number of British ships were captured under the law. Undoubtedly, the privateers’ additional naval might greatly assisted the small US naval force toward victory.
Second Barbary War
By February 1815, the War of 1812 had ended with U.S. Senate’s ratification of the Treaty of Ghent. Due in part to the demands on its weak finances, the United States had fallen into arrears in its payment of tribute to Algiers. A new ruler of Algiers reinstituted the seizing of foreign vessels to raise money through ransom. Algiers captured the Edwin, a merchant ship from Massachusetts. Although the ship carried few people, the capture of its passengers and their threatened enslavement generated strong resentment in the U.S.
By then the U.S. had a stronger navy, but was still feeling the economic effects of waging war and could ill afford to continue the payment of tribute. With the cessation of hostilities, U.S. merchants were ready to resume and expand trade with Europe and more willing to address piracy once and for all.
On March 3, 1815, Congress authorized the use of naval force against the Barbary State of Algiers. Having previously fought a war against the Barbary States, the U.S. was prepared to also make the second effort a success. President Madison saw the use of force as necessary to end this scourge that was threatening the high seas. His decision to use force was popular with the American public.
On May 20, 1815, the first of two squadrons set sail toward the Barbary ships. They were led by Stephen Decatur, known for his heroics in the prior conflict. In two battles the U.S. conquered Algiers’ ships. The victory was so thorough that the second squadron never saw action. In return for the ships, the Algerian leader returned the men enslaved from the Edwin and released the U.S. from further “obligations” to pay tribute. Similar treaties were signed with the leaders of Tunis and Tripoli. The U.S. victory was seen in some quarters as embarrassing to European powers who had continued to pay tribute to the Barbary States. A year later, Britain sent a squadron to attack Algiers. After peace was negotiated, thousands of slaves were freed, many of whom had been held for years.
Demise of privateering after the Second Barbary War
Many privateers began to abuse their authority under the Letter of Marque and Reprisal, seizing ships and wealth well beyond their scope of authority under the commissions they had been granted.
The 1856 Paris Declaration Respecting Maritime Law, executed as part of the treaty ending the Crimean War, effectively ended privateering in most countries. Britain led the effort to ban privateering, having suffered the loss of many ships to foreign forces in various wars of the early 19th Century. The ban on privateering was binding only on the parties that signed the Declaration. Other nations continued issuing letters of marque.
Could the United States apply ‘Marque and Reprisal’ in modern situations?
Although the U.S. has not issued letters of marque and reprisal since the War of 1812, it did not ratify the Paris Declaration. While such powers have not been used by the U.S., many argue that the powers set forth in the Constitution remain valid. Much of the debate centers on whether the Marque and Reprisal Clause extends only to authorizing private parties – the privateers – to engage in reprisals for private gain, or whether it also gives Congress the power to authorize reprisals by United States armed forces for public purposes.
In one instance early in World War II, Goodyear airships were armed to hunt enemy submarines. The status of the airships, which were owned and operated by Goodyear, a private company, raised questions whether they were operating as “privateers”. However, neither Congress nor the President formally authorized these airships to operate under a commission of marque and reprisal.
The issue of letters of marque and reprisal was raised in Congress after the 9/11 terrorist attacks. A bill that was introduced, titled the Marque and Reprisal Act of 2001, would have authorized the president to use letters of marque and reprisal against specific terrorists instead of waging armed battle against a foreign state. The proposed legislation compared terrorists to pirates and recognized the difficulty of fighting terrorism by traditional military means. In April 2009, a similar bill was introduced to apply such authority against Somali pirates operating in the Gulf of Aden. Both bills failed to pass.
Letters of marque and reprisal typically contain details to identify the targets of the seizure, the types of goods to be seized, and direction for the holding and disposition of the seized items. Also, the process allows prosecution of individuals who violate the terms and scope of the authority. The marque and reprisal system allows the government to leverage its might through the use of private mechanisms to supplement official forces.
* Kenneth Barden, an attorney and international consultant on integrity and accountability issues, has consulted numerous international development projects. He is a member of the SanctionsAlert.com Advisory Board and is certified as CAMS. firstname.lastname@example.org
 The quotation—“Millions for defense, but not one cent for tribute” – has been ascribed by some to Charles Cotesworth Pinckney, American minister to France; however, most historians now agree that it was actually said by Robert Goodloe Harper. See The Home Book of Quotations, ed. Burton Stevenson, 10th ed., p. 63 (1967) and “Notes and Queries,” South Carolina Historical and Genealogical Magazine, vol. 1, pp. 100–103, 178–79 (1901).
 The terms “privateers” and “pirates” are often used interchangeably. Both privateers and pirates are known for seizing ships on the high seas for profit. Technically, privateers operated under a formal grant of authority such as a letter of marque and reprisal. As such privateers acted under “color of law” at least insofar as the government granting authority was concerned. Pirates, on the other hand, lacked such formal authority and were considered lawless by most countries. Over time, many privateers found the practice of seizing vessels on the high seas so lucrative, that they began to seize ships well beyond the scope of their mandates under the letters of marque and reprisal and essentially became pirates in their own right. Piracy was treated as a criminal offense and privateers who were captured by enemy forces were often subjected to similar penalties as pirates. Over time, the distinction between privateers and pirates would become blurred.
 Ships seized during this war included: (1) The Meshboha, on August 26, 1803, a brig cruiser belonging to the Emperor of Morocco, captured by the USS Philadelphia, commanded by William Bainbridge. (2) The Mastico, a ketch of the Ottoman Tripolitania Navy, ca[tire on December 23, 1803, by the USS Enterprise and USS Constitution under the commands of Stephen Decatur and William Bainbridge, respectively. The ship was renamed as the USS Intrepid and was put under the command of Stephen Decatur, The Mastico, was one of a group of US ships which recaptured and destroyed the USS Philadelphia in February 1804.
 The USS Philadelphia, a US Navy frigate, was itself captured on October 31, 1803, by Barbary corsairs when it ran aground in the Mediterranean. The ship was refloated and used by the Ottoman Tripolitania Navy, until she was recaptured three months later by US Lieutenant Stephen Decatur and burned in the Tripoli harbor
 Peters, Public Statutes at Large, II: 759—60, 762-64.