Oct 152013

You may think that the Constitution is a rather dull and dry document, but it is actually has wealth of interesting stories about its contents and its creation! Let’s explore one today…Article 1, Section 8 of our Constitution has a particularly interesting clause. Known as the “Marque and Reprisal Clause,” it says that the Congress has the power to “grant Letters of Marque and Reprisal.” You might be surprised to find out what type of power such a letter grants… 

A Letter of Marque and Reprisal authorizes an individual, rather than the Navy or other official group connected with the military, to approach, attack, and if possible, capture a vessel that is thought to have somehow acted against, the United States. If the individual, known as a privateer, is successful, he then returns the ship, its crew, and its cargo for trial before an admiralty court. Eventually, the cargo could be sold. I am writing about this in the present tense because it was written into, and actually remains an active possibility because it is in the Constitution. However, such a letter has not been granted for some time. Many of the questions regarding this clause have echoed those regarding the Executive’s ability, or lack thereof, to authorize action by the military outside of our border which falls short of declaring war against another nation.
As used in the past, the term “Reprisal” indicated that the cargo, or perhaps even those onboard the ship, were being seized in retaliation for acts committed against our nation. How exactly did one become a privateer? Actually, it was the vessel that was authorized to take action rather than its captain. The owner of the ship submitted an application which included information about the ship, its owner, and its crew. A bond was posted to assure the vessel would conform to the nation’s treaties as well as international law. For the most part, a Letter of Marque and Reprisal was time limited.

Although not an active practice today, it is estimated that as many as 55,000 Americans served as privateers, and nearly 300 British ships were seized during the American Revolution. Privateers tended to differ from pirates in name only. They were not exactly part of the “kinder and gentler” crowd. Many privateers worked in the area of Long Island Sound and New London, Connecticut. One of the reasons this power was included in the Constitution was that more than 2000 American vessels were seized by European and North African countries. The United States, particularly prior to the ratification of the Constitution, had limited resources and capabilities to respond with its own armed forces. Individuals who were willing to risk life and limb for potential profit could accomplish much of what the United States, as a country, could not. Perhaps the most successful privateer in the years after the Founding was James DeWolf of Rhode Island. DeWolf captained a ship named the Yankee. The attached image is a replica of the type of ship that was often used by privateers. Despite the fact that he was both a slave trader, and had a murder charge dismissed on a technicality, DeWolf went on to become a member of the Rhode Island House of Representatives, and eventually a U.S. Senator. 

As a bit of a side note, it is interesting to note the difference in the simplicity of statements found in the Constitution as opposed to what was penned in the Articles of Confederation. The clause in the Constitution that I am writing about today clearly states that Congress has the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The Articles of Confederation also granted the Congress the same power. However, its tumescent text reads as follows: the Congress “shall have the sole and exclusive right and power of determining on peace and war… of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated — of granting letters of marque and reprisal in times of peace — appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.” 

Congressman Ron Paul actually authored legislation to issue Letters of Marque and Reprisal against several terrorists after September 11th, and again in 2007. However, that idea received little interest within the Congress. Congress last issued a Letter of Marque and Reprisal for a ship in 1812. Interestingly, the Resolute, a Goodyear Blimp, was indeed issued the most recent Letter of Marque and Reprisal by Congress to act as an anti-submarine privateer in 1942. 

Please take a moment to think about our Constitution. It is the Law of the Land and filled with the fundamental principles that are the underpinnings of our exceptional nation. However, it is also a document with many interesting concepts to be explored and associate stories to be told. I hope you will join me in learning more about our Constitution. A well-educated citizenry is definitely What IS Right With America. 

Susan C. Rempel, Ph.D.


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