The quasi war cases - and their relevance to whether "letters of marque and reprisal" constrain presidential war powers.

Author:Sidak, J. Gregory

    Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, (1) Talbot v. Seeman, (2) and Little v. Barreme (3) is the phrase in Article I, Section 8 of the Constitution that immediately follows the grant to Congress of the power "To declare War"--namely, the power to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." (4) These additional words, it is argued, are placed in the War Clause because the Framers intended that Congress, and Congress alone, have the power to authorize not only "general" or "perfect" war through a formal declaration of war, but also "limited" or "imperfect" war. It is further argued that the temporal proximity of the three Quasi War decisions to the framing of the Constitution strongly implies that the Framers meant to constrain the President's ability to use military force in a manner short of full-scale war.

    The list of scholars subscribing to this interpretation of the War Clause is long and imposing. In a frequently cited article published during the Vietnam War, Charles Lofgren argued that the Framers' grant to Congress of the power to issue letters of marque and reprisal created a residual category of all forms of undeclared war. (5) The Constitution, in his view, grants to Congress alone the power to commence war, whether by formally declaring war or by authorizing reprisals. (6) Abraham Sofaer, later a federal judge and legal adviser to the State Department, offered a similar interpretation of the Quasi War cases several years after Lofgren. (7) With the notable exception of Eugene Rostow, (8) other scholars writing on this topic during and shortly after the Vietnam War uniformly embraced that interpretation, (9) as have the scholars writing thereafter on the war powers. Dean Harold Hongju Koh of Yale Law School, for example, reads Bas and Talbot to constitute a "delineation and delimitation of the executive's authority [to commence] limited hostilities by means other than formally declared war." (10) Similarly, John Hart Ely read these cases to support his conclusion that the original meaning of the War Clause was that "all wars, big or small, 'declared' in so many words or not ... had to be legislatively authorized." (11) The other contemporary scholars subscribing to this same interpretation are numerous. (12)

    Part II of this essay analyzes the original understanding of "letters of marque," "reprisal," and "captures on land and water." (13) As used by legal scholars when the Constitution was drafted, these words had meanings that were both well understood and not dependent upon the allocation of war-making power between the legislative and executive branches.

    Part III discusses the facts, holdings, and dicta of the Quasi War cases. Properly read, these cases concerning the legality of capturing ships belonging to or collaborating with France during the Quasi War do not illuminate how the war powers should be allocated between Congress and the President.

    Part IV shows that the Supreme Court has never read this trio of cases, or any one of them individually, to support the proposition for which today's scholars routinely cite them. To the contrary, in the twenty decades since the Quasi War took place, the Court has, with rare exception, cited these cases only for propositions concerning the legality of capturing ships at sea. Nonetheless, the contemporary misinterpretation by scholars of the Quasi War cases found a receptive audience in 2000 in the U.S. Court of Appeals for the D.C. Circuit in Campbell v. Clinton, which involved President Clinton's use of military force in Yugoslavia. (14) The Quasi War cases have since been revisited by the Judiciary in the wake of the al Qaeda attacks of September 11, 2001 concerning litigation on the war on terror. (15)


    Roughly speaking, the original understandings of "letters of marque," "reprisal," and "captures on land and water" were the following. Letters of marque were legal authorization for private parties--privateers--to use force to harass or prey upon a nation's enemy. Reprisal was the legally authorized act of securing redress for a debt incurred by a foreign government by forcibly taking the private property of its subjects. Captures on land and water required legal rules to determine when, for example, the ownership of property captured by a private party during war lawfully transferred to the captor, thus extinguishing any subsequent claim of ownership by its owner at the time of capture. A proper understanding of "letters of marque," "reprisal," and "captures on land and water" does not require a theory of the separation of the war-making powers between Congress and the President. A richer understanding of these words suggests that their placement in the Constitution by the Framers concerned the distinction between the public and private waging of war and the right of a sovereign nation to make decisions regarding that distinction. When viewed through this lens, the contemporary argument that these words in the War Clause constrain the President's powers to use military force in undeclared wars is a non sequitur.

    A. The Law of Prize: Letters of Marque and Reprisal and Rules Concerning Captures on Water

    According to the Oxford English Dictionary, the first recorded use of "letters of marque and reprisal" was in an English statute in 1354 during the reign of Edward III. (16) The phrase referred to "a licen[s]e granted by a sovereign to a subject, authorizing him to make reprisals on the subjects of a hostile state for injuries alleged to have been done to him by the enemy's army." (17) The phrase appeared frequently in statutes throughout Europe in the fifteenth and sixteenth centuries. Eventually, letters of marque and reprisal evolved into commissions "to fit out an armed vessel and employ it in the capture of the merchant shipping belonging to the enemy's subjects, the holder of [a letter] being called a privateer or corsair." (18) In 1856, the Congress of Paris abolished the practice of issuing letters of marque and reprisal in Europe. (19)

    "Reprisal" was also used in the late sixteenth century to mean "the taking of a thing as a prize." (20) During that period, prize referred to "[a] ship or property captured at sea in virtue of the rights of war." (21) In the early eighteenth century, reprisal also meant "the infliction of similar or severer injury or punishment on the enemy" in wary In The Law of Nations, Emmerich de Vattel used "reprisals" to mean both the seizure of the property of citizens of another state and the practice of executing prisoners-of-war in retribution for the acts of the enemy. (23) "Reprisal," as used as a term of art in the phrase "letters of marque and reprisal," however, was to be distinguished from the colloquial use of "reprisals" to signify retaliatory acts during war. (24)

    In his treatise on the law of war and peace, published in 1625, Hugo Grotius wrote that, notwithstanding the usual limitations on vicarious liability found in a nation's domestic law, "it has been established by the law of nations that both the possessions and the acts of subjects are liable for the debt of a ruler. (25) Subsequent treatises on international law published before 1787 reinforced that proposition. (26) Samuel von Pufendorf, writing in 1688, more precisely stated that it was "an established custom among nations that in payment for a debt incurred by the state, or in which the state has involved itself by maladministration of justice, the property of individual citizens is held, to this extent, that foreigners to whom the debt is owed, can lay hands upon such property, if found among them." (27)

    This rule of vicarious liability, Grotius argued, "is the outgrowth of a certain necessity, because otherwise a great licen[s]e to cause injury would arise; the reason is that in many cases the goods of rulers cannot so easily be seized as those of private persons, who are more numerous." (28) One can imagine that, as with many legal customs and common law rules, this particular rule of vicarious liability had an efficiency justification in an era of monarchy. Grotius asserted: "[t]his [rule] then finds place among those rights which, as Justinian says, have been established by civilized nations in response to the demands of usage and human needs." (29) Presumably foreign creditors would be more willing to lend to a monarch if he could pledge the personal property of each of his subjects as collateral. This security would lower the monarch's cost of capital.

    At the same time, Grotius reasoned, vicarious liability for a monarch's debts was a rule that his subjects would be likely to accept consensually. In other words, the rule would have passed the test of a hypothetically voluntary exchange, which is the same analysis used in modern American jurisprudence to judge the ex post fairness of the compensation paid by the government for compelling a private party to enter into an involuntary exchange. (30) Grotius wrote:

    This principle ... is not so in conflict with nature that it could not have been introduced by custom and tacit consent, since sureties are bound without any cause, merely by their consent. It was hoped that members of the same society would be able through mutual relations to obtain justice from one another, and provide for their indemnification, more easily than foreigners, to whom in many places slight consideration is given. Hence the advantage derived from this...

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