Modernizing Prize Courts for Letters of Marque in the United States
A version of this piece was first published by the Defense Analyses Research Corporation (DARC). This is the version published by First Breakfast.
The United States Constitution reserves for Congress a power that many Americans have forgotten exists: the authority to issue letters of marque and reprisal. This delegation, enshrined in Article I, Section 8 alongside the power to declare war, raise armies, and provide and maintain a navy, represents one of the most fascinating intersections of private enterprise and national security in the American legal tradition.
The practice of issuing letters of marque and reprisal began as ad hoc retribution, where aggrieved parties provided lists of losses from hostile raids to their kings and convinced the crown to sanction a response. By the sixteenth century, privateering had evolved into a formal system throughout the European world. Nations without substantial naval resources utilized privateers to supplement the limited power of their fleets—which were often engaged in escorting merchant vessels—to scare off others.
The practice flourished during America’s early conflicts, particularly the Revolutionary War, the Quasi War, and the War of 1812. Between 1776 and 1783, approximately 800 American privateers captured or destroyed nearly 600 British vessels, disrupting supply lines and forcing the Royal Navy to divert resources to protect merchants and the convoys supporting its North American operations.
Prize courts played a major role in facilitating this private warfare, adjudicating the value—and validity—of captures worth millions of dollars and providing crucial revenue for the fledgling nation while simultaneously damaging British commercial interests.
Letters of marque have fallen into disuse—but not constitutional invalidity. Letters of marque have fallen into disuse—though not into constitutional invalidity. Privateering declined globally in large part due to Britain’s efforts to ban the practice in the nineteenth century. As the world’s dominant naval power, Britain had little to gain from privateering and lobbied to get other powers to abandon the practice, culminating in the Paris Declaration of 1856. Notably, the United States was not party to the agreement and has never officially renounced its right to license privateers.. Now, as we return to a world of hybrid wars and fuzzy lines between private citizens and combatants, we must reconsider our attitude toward old practices rooted in the early modern world, privateering included.
If the United States expects to meet the modern battlefield with the innovation and flexibility needed to fight not just on air, land, and sea, but in space and cyberspace, the constitutional authority to issue letters of marque in areas beyond their historical usage at sea must be reexamined, particularly the adjudication of prize cases and the awarding of remedies to those fortunate enough to carry out private operations in new areas of combat.
Read more in First Breakfast.
