Feral Jundi

  So this is interesting.  Here is a guy that works for the US Attorneys Office, who is former special forces and a reserve Army Intel guy, that writes this fantastic paper on the subject of Letters of Marque and Reprisal.  Does anyone else find that to be cool, or am I the only constitutional law geek that likes this stuff? lol

   The thing about it folks, is that I like the LoM, and I think it is just one more tool that can be used in this long and costly war.  It gives congress a means to connect with private industry in a way that will be cost effective, and certainly effective if done properly.  The one caveat though, is that congress needs to understand the mechanisms at play with this concept, and they must have the tools on how to properly construct a LoM. It would take some modern day modifications to get it just right, but it is certainly not impossible, and all the pieces are there to put it together.

   Which leads me to my next point.  By far, Feral Jundi is the place with the most comprehensive collection and commentary about the subject of the Letter of Marque and Reprisal. I know, I search this stuff relentlessly, and have collected it all.  I invite the readership to explore all of this good stuff, and ‘build a snowmobile’ out of it. Hell, write congress and let them know about the LoM and your thoughts about it. Remind them about Article 1, Section 8 of the Constitution and let’s get the word out. –Matt

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Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering

Theodore M. Cooperstein, U.S. Attorneys Office (SDFL)

Abstract

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

Suggested Citation

Theodore M. Cooperstein, “Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering,” 40 J. Maritime L. & Comm. 221 (Apr. 2009)

Link to publication website here.

LinkedIn Page for Theodore M. Cooperstein here.

Download Pdf here.