Letters of Marque and Reprisal

                    The topic of discussion for this Constitution Monday comes from Article I.8.11:  "The Congress shall have Power … To grant Letters of Marque and Reprisal."  This provision simply means that Congress could give letters to individuals authorizing them to wage war against the enemy.  This clause in the United States Constitution played a very important role in the Founders' discussion about how the war powers should be allocated between the President and Congress.

                    "The word marque means to `seize,' and reprisal implies the authority to `destroy.'  Since a letter authorizing a privateer to engage in such activities could provoke war or expand the dimensions of a war, such a letter should be issued only by that branch of government which has the responsibility to declare war.  In the United States, that plenary power belongs to the federal government."

 (See W. Cleon Skousen in The Making of America:  The Substance and Meaning of the Constitution, p. 443.)

                    "The common understanding of `Reprisal' is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state.  Because the word marque is the French equivalent of reprisal, many scholars believe that the constitutional term `Marque and Reprisal' is best understood as a single phrase."  (See John Yoon and James C. Ho in The Heritage Guide to the Constitution, p. 130.)

                    This statement continued in explaining a serious debate over the meaning of this clause.  Does it authorize only private individuals or parties to gain privately and commercially from the reprisals or does it give "Congress the power to authorize reprisals by the armed forces of the United States for public purposes"?

                    History tells us that General George Washington and his rag tag army of volunteers were able to surround the British at Yorktown only because the French navy was off shore keeping the British fleet away.  The colonists had no national navy during the Revolutionary War except "privateers" - private individuals using their personal or business ships to engage in hostile actions.  The letters of marque and reprisal were given to individuals so they could outfit their privately owned ships to capture British ships without being considered as common pirates if they were caught.  Having a letter from their national authorities could save their lives because pirates in those days were usually killed without trial at the time of capture.

                    Skousen explained that "Since the Declaration of Paris in 1856, letters of marque and reprisal have been considered prohibited by international law.  Nevertheless, in very recent years [middle to late 1900s] American fishing boats requested permission to arm their boats in order to drive off Soviet fishing vessels which were deliberately destroying underwater nets and other expensive fishing gear.  The government did not issue letters of marque and reprisal, but since the Soviet fleet was fishing in American waters, the Coast Guard went out and forced the Russian boats into Boston Harbor, where they were each subjected to very heavy fines."

                    This could explain why commercial ships continue to be unarmed even though they are being hijacked by pirates from Africa.  Another example of how our commercial ships are at the mercy of the pirates was the hijacking of the U.S.-flagged Maersk Alabama on Wednesday, April 9, 2009.  Somali pirates hijacked the unarmed freighter and took Captain Richard Phillips, 53, as a hostage.  Phillips was held in a tiny lifeboat during the negotiations.  He was still there on Easter Sunday, April 13, 2009, when Navy SEAL snipers who were standing on the fantail of a destroyer shot the three pirates and rescued him.  The successful operation was personally approved by President Barack Obama and marked a victory for the U.S.  Our nation had been powerless to resolve the situation even though helicopter-equipped warships were gathering at the scene.  Negotiations with the pirates were becoming dangerous, and an AK-47 was aimed at Phillips' back when the snipers shot the three pirates.