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Letters of Marque and Reprisal (Part 2):
Drafting History and U.S. Practice
February 26, 2025
Article I, Section 8, Clause 11 of the Constitution authorizes Congress to grant letters of Marque and
Reprisal[,] which are instruments that permit private citizens to seize enemy vessels and their cargos and
crew. This Legal Sidebar is the second installment in a two-part series that discusses Congress's power
over letters of marque and reprisal. Part 1 provides an overview of letters of marque and reprisal and
places the instruments in historical context. This installment examines the instruments' role in the drafting
of the Constitution, discusses their rise and decline in U.S. practice, and outlines proposals to revive the
instruments in modem contexts.
Letters of Marque and Reprisal and the Drafting of the
Constitution
At the 1787 Constitutional Convention in Philadelphia, the Framers gave the legislative branch an
unqualified power to grant letters of marque and reprisal while denying that power to states in all
circumstances. This allocation of authority did not prompt significant debate during the Constitution's
framing-possibly because the Framers had a successful experience with privateering during the
Revolutionary War and the Articles of Confederation had also given the national government power to
issue the instruments.
Although several delegates to the Convention, including George Washington, had made profitable
investments in privateering enterprises during the revolutionary period, there was no recorded debate over
letters of marque and reprisal during the first three months of the Convention. The Convention's
Committee of Detail also did not include the power to issue letters of marque and reprisal as one of
Congress's enumerated authorities in its first draft of the Constitution. It was not until the twelfth week of
the Convention that a delegate, Elbridge Gerry of Massachusetts, made the first mention of the
instruments. During a debate over the powers that the Committee of Detail's first draft assigned to the
legislative branch, Gerry recommended inserting a clause giving Congress power to issue letters of
marque and reprisal because he did not believe Congress's war powers, as drafted, provided that authority.
Gerry moved to refer the issue to the Committee of Detail, and his motion passed unanimously and
without debate.
Congressional Research Service
https://crsreports.congress.gov
LSB11273
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govespd0001&div=1&collection=&method=preview&ext=.png&size=3)