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A letter of marque is an official warrant or commission from a government authorizing the designated agent to search, seize, or destroy specified assets or personnel belonging to a foreign party that has committed some offense under the laws of nations against the assets or citizens of the issuing nation and has usually been used to authorize private parties to raid and capture merchant shipping of an enemy nation.

The formal statement of the warrant is to authorize the agent to pass beyond the borders of the nation ("marque" or frontier) and then to search, seize, or destroy an enemy's vessel or fleet. It is considered a retaliatory measure short of a full declaration of war, and, by maintaining a rough proportionality, has been intended to justify the action to other nations, who might otherwise consider it an act of war or piracy. As with a domestic search, arrest, seizure, or death warrant, to be considered lawful, it needs to have a certain degree of specificity to ensure that the agent does not exceed his authority and the intent of the issuing authority.

In the past, a ship operating under a letter of marque and reprisal was privately owned and was called a "private man-of-war" or privateer. The French sometimes used the term lettre de course for its letters of marque, giving rise to the term corsair.

The right to issue letters of marque was relinquished by signatories to the Declaration of Paris, which was an annex to the 1856 Treaty of Paris, which ended the Crimean War.

United Kingdom and France

Letters of marque were issued by Englandmarker, after 1707 by Great Britainmarker, and after 1801 by the United Kingdommarker, until the signing of the Declaration of Paris in 1856. Famous recipients include Sir Francis Drake, Sir Henry Morgan, and William Kidd. To further illustrate the subtle difference between piracy and privateering, both Henry Morgan and William Kidd were later brought up on charges of piracy by England.

Not all letters of marque were issued with the deliberate intent of waging war on merchant shipping of the enemy. For instance, during the Napoleonic Wars (1793-1815), the British whaling fleet owners would often seek warrants and letters of marque for their vessels. For these vessels of small crews (up to thirty whalemen) and long deployments of two to three years to the Pacific Ocean, the letter of marque provided them with legitimacy in the event that they captured a French or Spanish prize. Without a letter of marque, any ship seized could not be regarded as a "lawful prize". The important point was that the role as a privateer was of lesser importance to the activity of whaling. British insurance policies made this clear—"cruising for prizes" was not a core activity for a whaler, it was incidental. As such, any whaler that operated exclusively as a privateer in the Pacific Ocean put at risk its marine insurance—exposing the cautious but entrepreneurial whaling owner to too great a financial risk.

Letters of marque were given by Francemarker in a very selective manner. Under Napoleon, they covered a six-month period in case a war should come to an end. This meant that captains left port with several letters of marque, since expeditions rarely lasted less than a year. Once he returned to harbour, the captain had to hand the letter over to the naval authorities, who destroyed it, creating a greater sense of accountability and rarity. By restricting the duration of the letters of marque, this meant that even if a ship was in an isolated part of the world (i.e. completely unaware that the war had ended), the extent of their activities was necessarily limited by the expiry date on their documentation. A famous French "corsaire" was Robert Surcouf.

United States

Article 1 of the United States Constitution lists issuing letters of marque and reprisal in Section 8 as one of the enumerated powers of Congress, alongside the power to "declare War". One question is whether the marque and reprisal clause requires the President to obtain such a letter from Congress as an authorization for limited offensive warlike operations outside the territory of the United States.

It is the opinion of Jules Lobel, a Constitutional law scholar at the University of Pittsburgh School of Law, that the origins of this clause and the framers' intent fit well with modern notions of irregular warfare, supporting the view that the President's use of troops in foreign military operations, including covert paramilitary actions, is illegal without Congress's authorization.

Some scholars, however, view this clause as contemplating action only by private contractors, and not as a limit on presidential power. For example, in 2002, Douglas Kmiec, then dean of the Columbus School of Law at the Catholic University of Americamarker, testified before the Senate Judiciary Committee that:

Letters of Marque and Reprisal are grants of authority from Congress to private citizens, not the President.
Their purpose is to expressly authorize seizure and forfeiture of goods by such citizens in the context of undeclared hostilities.
Without such authorization, the citizen could be treated under international law as a pirate.
Occasions where one's citizens undertake hostile activity can often entangle the larger sovereignty, and therefore, it was sensible for Congress to desire to have a regulatory check upon it.
Authorizing Congress to moderate or oversee private action, however, says absolutely nothing about the President's responsibilities under the Constitution.


Because the difference between a privateer and a pirate was a subtle (often invisible) one, in 1856, the issuance of letters of marque and reprisal to private parties was banned for signatories of the Declaration of Paris. The United States was not a signatory to that declaration and is not bound by it. During the 1861-1865 American Civil War and the 1898 Spanish-American War, however, the United States issued statements that it would abide by the principles of the Declaration of Paris for the duration of the hostilities. The Confederate States of America issued letters of marque and reprisal during the Civil War. The only vessel to operate under a letter of marque issued by the United States Congress since the War of 1812 was the airship Resolute, operated by civilians to patrol the seas for submarines during the Second World War (see Airship, § World_War_II).

The issue of marque and reprisal was raised before Congress after the September 11, 2001 attacks and again on July 21, 2007, by Congressman Ron Paul. The attacks were defined as acts of "air piracy", and the Marque and Reprisal Act of 2001 was introduced, which would have granted the president the authority to use letters of marque and reprisal against the specific terrorists, instead of warring against a foreign state. The terrorists were compared to pirates in that they are difficult to fight by traditional military means. Congressman Paul also advocated the use of letters of marque to address the issue of Somali pirates operating in the Gulf of Aden on April 15, 2009.

See also



References

  1. Jules Lobel, “‘Little Wars’ and the Constitution,” in “War and Responsibility: A Symposium on Congress, The President, and the Authority to Initiate Hostilities,” 50 U. of Miami Law Rev. 61, 66 (October 1995).
  2. (http://judiciary.senate.gov/hearings/testimony.cfm?id=225&wit_id=438)
  3. pp 20-21 Vaeth, J. Gordon Blimps and U-Boats 1992 US Naval Institute Press
  4. TST: Statement on the Congressional Authorization of the Use of Force
  5. Paul offers President New Tool in the War on Terrorism on the homepage of United States House of Representatives, accessed at April 29 2007



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