Quasi War with France from 1798–1800 and War Powers

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Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

A trio of cases arising out of the events known as the Quasi War with France provide some insight into early judicial views about separation of war powers.1 Angered that the United States did not aid France in its late 18th century war with England, the French government ordered the seizure of American merchant ships.2 While Congress did not declare war in response, it did pass a series of statutes abrogating the United States’ treaties with France and authorizing limited hostilities against French vessels.3 In Bas v. Tingy, the Court addressed one such statute that authorized a financial award, known as prize money, to persons that re-captured U.S. vessels that had been seized by “the enemy.” 4

U.S. (4. Dall.) 37, 40 (1800)

(opinion of Washington, J.) (interpreting 1 Stat. 709). Several Justices in Bas reasoned that France fell within the meaning of “the enemy” because, although Congress had not formally declared war, it had exercised its constitutional power to authorize an “imperfect” and “limited” war against France through statutes.5

Talbot v. Seeman concerned another claim for monetary compensation following re-capture of a vessel that had been seized by the French.6

5 U.S. (1 Cranch) 1, 1–3 (1801)

. In concluding that the U.S. commander’s reclaiming of a neutral German ship was authorized by Congress, the Supreme Court stated that “[t]he whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry.” 7

The Court’s last major Quasi War case, Little v. Barreme, addressed a more direct conflict between a congressional authorization and the executive branch’s military orders.8

6 U.S. (2 Cranch) 170, 177 (1804)

. The statute at issue in Little directed U.S. naval commanders to seize vessels on the high seas suspected of violating U.S. trade and travel restrictions if the vessels were sailing to French ports.9 The Secretary of the Navy’s instructions, by contrast, which were based on orders from the President, directed seizure of vessels bound to or from French ports.10 After a U.S. captain, following the Navy’s instructions, captured a ship traveling from a French port to Danish territory in the Caribbean, a lawsuit was filed seeking damages against the captain under the theory that the seizure was unlawful because the vessel was not sailing to French territory.11

In an opinion by Chief Justice Marshall, the Supreme Court held that the naval instructions contravened the express provision of a statute, and therefore the captain’s seizure was unlawful—even though the instructions might have been a valid exercise of the President’s Article II powers in the absence of contradictory legislation.12

id. at 177–79

. Chief Justice Marshall “confess[ed]” that he was initially inclined to excuse the requirement for paying damages because the captain was following a superior officer’s order, but the Supreme Court ultimately concluded that the military order could not “change the nature of the transaction” or immunize the captain from liability for a seizure that violated federal law.13

After the Quasi War, the United States engaged in two similarly limited, largely naval wars, known as the Barbary Wars.14 In response to then-countries of Tripoli’s and Algiers’ piracy and aggression against American shipping in the Mediterranean, Presidents Jefferson and Madison sought approval from Congress before engaging in military aggression.15 In both cases, Congress authorized limited hostilities necessary to protect commerce, but did not issue a full declaration of war.16

1: See Bas v. Tingy, 4 U.S. (4. Dall.) 37 (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). Scholars haven taken different views of the significance of the Quasi War cases. Some contend that the cases and the early American practice they discuss support a dominant congressional role in separation of powers over initiation of armed conflicts. See, e.g., Michael Glennon, Constitutional Diplomacy 5–8, 77, 116–17 (1991). Others assert that the practice was nuanced and the cases largely concern statutory interpretation and do not directly address the scope of the President’s Article II powers. Gregory Sidak, The Quasi War Cases—and Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465, 480–93 (2005).
2: See The XYZ Affair and the Quasi-War with France, 1798–1800, U.S. Dep’t of State: Office of the Historian, >https://history.state.gov/milestones/1784-1800/xyz (last visited Sept. 10, 2024); Kat Eschner, This Unremembered US-France ‘Quasi War’ Shaped Early America’s Foreign Relations, Smithsonian Mag. (July 7, 2017), >https://www.smithsonianmag.com/smart-news/unremembered-us-france-quasi-war-shaped-early-americas-foreign-relations-180963862/.
3: See Act of June 13, 1787, 1 Stat. 565; Act of June 28, 1798, 1 Stat. 574; Act of June 25, 1798, 1 Stat. 572; Act of July 7, 1798, 1 Stat. 578; Act of July 9, 1798, 1 Stat. 578; Act of July 16, 1798, 1 Stat. 611; Act of March 2, 1799, 1 Stat. 709.
4: U.S. (4. Dall.) 37, 40 (1800)

(opinion of Washington, J.) (interpreting 1 Stat. 709).
5: See
id. at 40
(opinion of Washington, J.) ( “[H]ostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war[.]” ) (emphasis in original);
id. at 43
(opinion of Chase, J.) ( “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.” );
id. at 45
(opinion of Paterson, J.) ( “An imperfect war, or a war, as to certain objects, and to a certain extent, exists between the two nations; and this modified warfare is authori[z]ed by the constitutional authority of our country.” ).
6: 5 U.S. (1 Cranch) 1, 1–3 (1801)

.
7: Id. at 28
.
8: 6 U.S. (2 Cranch) 170, 177 (1804)

.
9: See
id.
(analyzing Act of March 2, 1799, 1 Stat. 709)
10: See
id. at 178
. See also
id. at 171
(reporter’s note).
11: See
id. at 176–78
.
12: See
id. at 177–79
.
13: Id. at 179
.
14: The Barbary States, including Tripoli and Algiers, “were a collection of North African states, many of which practiced state-supported piracy in order to exact tribute from weaker Atlantic powers.” Barbary Wars, 1801–1805 and 1815–1816, U.S. Dep’t of State: Office of the Historian, >https://history.state.gov/milestones/1801-1829/barbary-wars (last visited Sept. 12, 2024).
15: See President Thomas Jefferson, First Annual Message to Congress (Dec. 8, 1801), >https://www.loc.gov/resource/mtj1.025_0179_0186/; Message from President James Madison to Congress (Feb. 18, 1815), >https://founders.archives.gov/documents/Madison/03-08-02-0523.
16: An Act for the Protection of the Commerce and Seamen of the United States against the Tripolitan Cruisers, §§ 1–2, ch. 4, 2 Stat. 129, 129–130 (1802); An Act Further to Protect the Commerce and Seamen of the United States against the Barbary Powers, 2 Stat. 291 (1804); An Act for the Protection of the Commerce of the United States against the Algerine Cruisers, 3 Stat. 230 (1815).