PART II
You dislike the emancipation proclamation; and, perhaps, would have it retracted. You say it is unconstitutional—I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there—has there ever been—any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.
—Abraham Lincoln to James C. Conkling,
August 26, 1863
Chapter 5
I’m a good enough lawyer in a Western law court, I suppose, but we don’t practise the law of nations up there . . . .
—Abraham Lincoln, April 1861
IT IS ONE of the most enduringly striking features of the United States’ greatest wartime president that he came into office with virtually no prior experience of war. Of the fifteen men who served in the office before Abraham Lincoln, only two possessed wartime records as thin as his, and their records in office did not inspire confidence. Martin Van Buren led the country’s bloody, ethically dubious, and indecisive campaign against the Seminoles in Florida in the late 1830s. Ten years later, James Polk leapt headlong into the Mexican War, a war that Lincoln himself bitterly opposed.
When compared to his Confederate counterpart, Jefferson Davis, Lincoln’s meager wartime record seemed even weaker. Davis was a West Point graduate, a six-year veteran of the Army officer corps, and a former secretary of war in the administration of Franklin Pierce. In the Mexican War, he had proven himself a brilliant battlefield tactician. Lincoln’s sole experience in armed conflict, by contrast, had occasioned more jokes than praise. In the short and sordid Black Hawk War of 1832, Lincoln had served as a captain of the Illinois militia. Historians have long speculated that Lincoln’s leadership stint in the militia propelled him into politics. But no one disputes that Lincoln’s actual role in the conflict was negligible. “I had a good many bloody struggles with the mosquitoes,” he later quipped, “and although I never fainted from the loss of blood, I can truly say I was often very hungry.”
Lincoln had no more experience with the laws of war than he did in the heat of combat. His own minister to Great Britain scoffed that the president “knew absolutely nothing” about foreign relations. His minister in Vienna worried that Lincoln did not even havethe good sense to hide how little he knew. In the week before his inauguration, six weeks before the first shots of the Civil War, the president-to-be admitted to one European diplomat that he didn’t “know anything about diplomacy.” “I will be very apt,” he confessed, “to make blunders.” It was thus no small matter that one of the first problems Lincoln had to face after the firing on Fort Sumter on April 12, 1861, was a high-stakes and delicate decision about the laws of war.
UP UNTIL THE middle of April, Lincoln had treated secessionists not as enemies but as criminals. “We must not be enemies,” he had told the South at his inauguration. In one sense, his words were conciliatory. But the words had a double meaning that was not lost on his listeners. For if violence broke out and the secessionists were not enemies in war, then they were criminals subject to punishment for treason. “Acts of violence within any State or States against the authority of the United States,” Lincoln had warned, were not acts of war but “insurrectionary or revolutionary” crimes.
This was no mere lawyer’s game. If the violence that broke out in the second week of April was a crime, then the humanitarian limits on war’s destructive powers had no application.
Many in the North took the logical next step. In Milwaukee, the Daily Press & News conceded that the laws of war required that nations “be hospitable to a foe,” but observed that they said nothing about how to treat a treasonous brother. The editors of theBuffalo Morning Express wrote that the secessionists were not “entitled to the considerations belonging to a common humanity.” In Missouri, the Unionist editors of the Columbia Daily concluded bluntly that if the limits of civilized war were inapplicable, then “no quarter should be shown to rebels.” The Elkhorn Independent of Wisconsin called for a “war of extermination to all traitors.” Elias B. Holmes, a former Whig member of Congress, urged Lincoln that all cities “refusing to lower the secession flag” should be “razed to the ground.” The editors of the New York Herald foresaw a conflict “vindictive, fierce, bloody, and merciless beyond parallel in ancient or modern history.” Horace Greeley’s New York Tribune predicted that “Jeff. Davis & Co. will be swinging from the battlements at Washington . . . by the 4th of July.”
In the early summer of 1861, it was not yet clear whether captured Confederates would be treated as prisoners of war or as criminals. Harper’s Weekly artist Alfred Waud sketched a prisoner being interviewed by four Union soldiers and (at far left) a member of the local police force.
In the weeks after Lincoln’s inauguration, however, a new problem called into doubt his treatment of secession as crime. A critical piece of the early Union strategy was to cut off the southern ports to foreign trade. The importation of weapons and supplies for the new Confederate Army would be vital to the southern capacity to fight a war. Cotton exports were the economic engine of the region. But the question of how to cut the South off from the world quickly caught the United States in a foreign policy predicament. The British and French economies relied heavily on southern cotton. When Secretary of State Seward floated the idea of closing southern ports at a dinner for European foreign ministers in late March, the group objected vociferously. The British minister, Lord Lyons, warned Seward ominously that “if the U.S. determined to stop by force so important a commerce as that of Great Britain with the cotton-growing states,” he “could not answer for what might happen.” Closing the ports, Lyons told Seward, would force the European powers to choose between “interruption of their Commerce” and “recognizing the Southern Confederation.” Lyons left little doubt which choice he would prefer.
The greatest difficulty for the British, however, was not merely that closing the ports would stop the cotton trade. A bumper crop in 1860 had left British cotton markets with an excess of supply, and British cotton interests could survive virtually unscathed for another season, perhaps more, without imports from the American South. The bigger problem was that a port closure would subject vessels and crews of the British merchant fleet to the United States’ criminal laws. Lord Lyons feared that British seamen caught trying to evade the port closure would provide a cause célèbre for British cotton interests, who in turn would be in a position to exert great pressure on the British government to recognize the South and reopen the cotton trade. Writing to the British foreign secretary Lord John Russell, Lyons observed that a port closure would make British vessels and their crews subject to American criminal prosecution, a sanction that Lyons thought would impose “vexations beyond bearing.” “All kinds of new and doubtful questions will be raised,” Lyons worried.
THERE WAS ANOTHER path open to the United States, however. What would happen, Seward wondered, if the United States declared a blockade against the southern states?
At first, the distinction between blockade and port closure seemed mere wordplay, the kind of distinction only a lawyer could love. But as Seward studied the administration’s predicament, he began to understand that a blockade would be crucially different from closing the ports. Blockades were creatures of international law, not domestic U.S. law. A blockade would therefore operate according to rules that were shared on both sides of the Atlantic—rules that the British themselves had helped to forge in the wars against Napoleon a half century before. The international law of blockade would not be subject to change without notice by U.S. officials, which meant that British merchants would be able to guide their actions by reference to its known rules. Disputes would be determined by prize courts operating pursuant to the international law of prize, not by American criminal law and juries of impassioned American citizens. When Seward consulted with Lyons about the idea, the British minister conceded that “a regular blockadewould be less objectionable” because the “rules of a blockade are to a great extent determined and known.”
Most of all, turning to the blockade appealed to Britain’s long-standing interests. It was Britain and its massive navy that had insisted on defending the international law power of blockades in the Napoleonic Wars. Now, fifty years later, Britain still leaned heavily on its navy as the guarantor of its far-flung empire. The blockade form thus appealed to Britain’s aim of maintaining a broad power of blockades for use in any future war against the powers on the Continent. And so, at Seward’s urging, the president issued a proclamation “to set on foot a blockade of the ports” along the coast from South Carolina to Texas. Eight days later, Lincoln extended the blockade order to the ports of North Carolina and Virginia.
The European ministers in Washington barely registered an objection. Partly this was because Lyons and other foreign ministers doubted that the tiny U.S. Navy could mount a blockade any time soon. Under international law, a blockade was only lawful if it involved a naval force sufficient to make it effective. But as Lincoln understood all too well, the size of the U.S. Navy meant that a good deal of cotton would get through for the foreseeable future. “Our ships,” Lyons winked, “could at all events resort to any Ports before which the U.S. did not establish a regular effective blockade.”
But American observers, especially many of Lincoln’s closest allies, were furious. A majority of Lincoln’s own cabinet feared that the president’s inexperience had led him into a foolish and potentially disastrous blunder. “A nation cannot blockade its own port,” spluttered a furious Attorney General Edward Bates. Postmaster General Montgomery Blair opposed a blockade in favor of “the legal and straightforward course” of closing the ports or setting up custom collection on ships stationed off the southern coast. Secretary of the Navy Gideon Welles would have to implement the blockade, but Welles was virtually apoplectic. The cabinet, he recorded in his diary, had “preferred an embargo or suspension of intercourse.” The conflict with the South, he argued, was “a civil war, and not a foreign war.” To blockade rebel territory would be to “raise the insurgents to the level of belligerents” and concede that “the Confederate organization” was “a quasi government” entitled to a position among nations. “If the interdiction is to be by Blockade,” Welles said pointedly, then it followed that “the Confederate States must be considered and treated as a distinct nationality—their collectors, revenue officers, clearance, registers &c” would have to be “recognized as legitimate.”
Lincoln seemed to have given away the game before it had even begun. Judah Benjamin, the Confederacy’s attorney general, snickered that “the blockade of the Southern ports is illegal so long as the President claims them to be ports of the United States.” Lincoln’s own proclamation seemed to concede the independent status of the South by justifying the blockade not merely under the law of the nation (singular), but under “the law of Nations” (plural). Indeed, as many saw it, the blockade proclamation made no sense at all. Lincoln coupled his blockade with a declaration that private vessels commissioned into service by the so-called Confederacy would be treated as pirates (and thus subject to execution as criminals) rather than as privateers (and thus eligible for prisoner of war status). As Welles remarked acidly, this was a “strange inconsistency” in the proclamation. Lincoln had contradicted himself, treating the Confederacy as an independent country in one breath and as a criminal conspiracy in the next. An exasperated Welles blamed Lincoln’s ignorance, the baleful influence of Seward, and an embarrassing submissiveness toward the European powers.
WHAT WELLES DID NOT grasp was that with a little push from Great Britain and France, Lincoln and Seward had stumbled into a distinctive way of thinking about the laws of war, one that would serve the nation well over the next four years and more. The blockade promised (in Seward’s words) “to avoid complications” that both Lincoln and Seward believed “would be likely to involve us in a foreign war,” and as Lincoln told his cabinet, the nation could not afford “to have two wars on our hands at once.”
That the proclamation was incoherent as a matter of international law was less important to Lincoln than the fact that it helped smooth relations with the European neutral powers. Soon after the blockade proclamation, Lincoln ran into Congressman Thaddeus Stevens, a staunch abolitionist and chair of the powerful Ways and Means Committee in the House of Representatives. Stevens complained that Lincoln’s proclamation had committed the United States “to conduct the war, not as if we were suppressing a revolt in our own States, but in accordance with the law of nations.” The president, Stevens intimated, had misunderstood the principle at stake and had gotten the legal categories backwards. Lincoln replied with characteristically self-deprecating wit: “I see the point now, but I don’t know anything about the law of nations, and I thought it was all right.” With a bit of brilliant homespun banter, the president dismissed the self-righteous Stevens. “I’m a good enough lawyer in a Western law court, I suppose,” Lincoln said, “but we don’t practise the law of nations up there, and I supposed Seward knew all about it, and I left it to him. But it’s done now and can’t be helped, so we must get along as well as we can.”
Lincoln knew far more than he let on. With a little help from the British, the president had developed a new appreciation for the laws of war, one that was grounded not in the abstract principles of Stevens and Welles but in a practical idea about what the laws of war could accomplish for the Union war effort.
THE UNION BLOCKADING squadron’s first capture came on May 12 off Charleston, South Carolina, when the steam frigate USS Niagara fired a shell across the bow of an inbound vessel called the General Parkhill. Captain William McKean of the Niagara seized the blockade-runner from its South Carolina owners and sent it to Philadelphia to be condemned along with its cargo by a federal prize court. The next week, off the coast of Virginia, Flag Officer S. H. Stringham of the Atlantic Blockading Squadron captured a dozen Virginia-owned vessels carrying cargoes of tobacco.
British vessels were soon caught up in the Union dragnet. On May 20, Stringham’s 44-gun wooden steam frigate, the USS Minnesota, captured the English bark Hiawatha and sent it to New York for judicial investigation. The next day, Stringham captured another English vessel, the schooner Tropic Wind, off Hampton Roads and sent it to the federal district court in Washington, D.C. And these were just the first. Over the next four years, the Union blockade intercepted more than 1,200 vessels, most of them owned (at least nominally) by British merchants. When all was said and done, the federal district courts condemned more than 600 vessels as prizes of their U.S. Navy captors.
SIXTY-YEAR-OLD Secretary of State William Henry Seward was the unlikely architect of Lincoln’s legal strategy for the blockade. Seward was his generation’s consummate politician. A small, rail-thin, and slightly stooped man of incongruously prodigious appetites and a taste for Cuban cigars, Seward had served as governor of New York from 1839 to 1843 and then as a U.S. senator from New York from 1849 until his appointment as secretary of state. As a senator, Seward had become known for his outspoken opposition to slavery. But as a politician, his enemies viewed him as the corrupt puppet of the newspaper publisher Thurlow Weed, the powerful backstage manager of New York’s Whig Party machine. Seward, it was said, would compromise on principle for the sake of Weed’s partisan ends. So complete was Seward’s association with Weed that even Seward joked about what others no doubt thought true: “Seward is Weed and Weed is Seward,” he quipped. Together, the two men made a formidable political team. Thanks to Weed’s influence behind the scenes and Seward’s political charisma, Seward had been the favorite to win the 1860 Republican Party nomination for president until the nomination went to the relatively unknown Abraham Lincoln instead.
Seward was a lawyer, but like Lincoln his skills did not include mastery of the fine distinctions of the laws of maritime warfare or the law of nations. What Seward had going for him was an uncanny knack for appealing to judges and juries and getting them to see his client’s side of the argument. Many worried that Seward’s skills in the law would be unlikely to serve him as well in statecraft as they had at the New York bar and in the back rooms of New York politics. Contemporaries observed that Seward had “never given any particular attention” to international law. Charles Francis Adams, Jr., who knew Seward in the 1860s, later wrote that he “did not possess what is known as a legal mind, much less one of a judicial cast.” Montgomery Blair stated plainly that Seward knew “less of public law than any man who ever held a seat in the Cabinet.” Charles Sumner, chairman of the Senate Committee on Foreign Relations, believed that Seward knew nothing of international law. Attorney General Edward Bates announced that Seward was “no lawyer and no statesman.”
Indeed, for two decades or more, Seward had been a well-known demagogue on questions of the laws of war. As governor of New York during the prosecution of the Canadian Alexander McLeod, Seward had managed the episode (with Thurlow Weed at his side) for maximum political gain. British statesmen remembered the episode very well. “His view of the relations between the United States and Great Britain,” wrote Lord Lyons to Lord Russell, “has always been that they are good material to make political capital of.”
IF SEWARD WAS the architect of the blockade, Secretary of the Navy Gideon Welles was its master builder. As an administrator, Welles did work that was nothing short of astounding. Beginning with a navy of merely sixty-seven ships, most of which were either out of service or on duty in far-flung posts around the world, Welles was asked to blockade some 2,000 miles of dense and intricate coastline. Only twelve vessels were ready for operation in U.S. waters when the war began. By the end of 1863, Welles had builta navy comprised of 588 seaworthy vessels. The blockade was never a perfectly tight fit. Historians estimate that three or four blockade-runners made it to their destination for every one the Union Navy captured. Yet the blockade deterred many of the largest vessels from even trying and dramatically reduced the tonnage of trade to southern ports. Without Welles’s indefatigable efforts at the Navy Department, the blockade might never have made the kind of contribution it did.
For all his success, Welles had to be cajoled by Seward and Lincoln to comply with the administration’s legal strategy for the blockade. An old newspaper man from Hartford, Welles had developed a well-earned reputation for self-righteousness. He was dogmatic and rigid where Seward was practical and savvy. From the beginning, Welles viewed Seward’s invocation of the international laws of war as an unprincipled mistake and an embarrassing concession of weakness. The secretary of state, Welles later wrote, lacked “the bold and vigorous mind to assert and maintain a right principle, if fraught with doubt and difficulty, provided there was an easier path.” An executive order closing the ports as a matter of U.S. law was the principled path. The ports of the seceded states were, after all, still U.S. ports. But the blockade had been the easier path, and the rash secretary of state had capitulated to European pressure. So upset was Welles that his first orders to the blockading squadron inadvertently recharacterized Lincoln’s proclamation as a port closure instead of a blockade. “I am embarrassed,” he confessed to the president, “as to the instructions I am to give our naval officers.”
In Welles’s view, turning to international law was certain to produce an endless series of crises and controversies. “Every capture,” he warned the president, would be “resisted in the courts” by neutral foreign nations and the insurgent states alike on the ground that the United States could not legally blockade a region of its own country. Foreign merchants and the southern states, Welles worried, would forge a “common enmity” toward the United States because the blockade was nothing less than a limited “war against the commerce of the world.”
Seward’s intuition was precisely the opposite. In Seward’s estimation, the existence of a common body of law governing the clash between Union vessels and neutral merchants on the seas—and especially a body of law in which the United States could appeal to rules in which Britain had a shared interest—would minimize the conflict on the seas between the United States and foreign nations. The quick-minded Seward enjoyed needling his ponderous cabinet colleague. On more than one occasion, Seward provoked Welles by admitting that he had never “looked in [a] book on international law”—not even once—since entering the office of secretary of state.
THE BLOCKADE CONTROVERSY soon sent lawyers and judges scurrying to the books Seward claimed to disdain.
As prize vessels arrived in the ports of the North, the argument between Seward and Welles now reappeared in the courts. What would happen there was anyone’s guess. Roger Taney of Maryland, the author of the Dred Scott decision in 1857, was the increasingly frail but ardently anti-Lincoln chief justice of the United States. In 1861, he had issued an opinion denying Lincoln’s authority to suspend the writ of habeas corpus.8 Lincoln had evaded the chief justice’s order, but adverse decisions in the prize cases would be much harder to ignore. Richard Henry Dana, Jr., the federal district attorney in Boston, worried that Taney “would end the war” by undoing the Union’s capacity to stop imports to the South. “Where it would leave us with neutral powers,” Dana wrote to the American minister in London, was “fearful to contemplate.” In the worst-case scenario, the United States would be liable for millions of dollars in damages to Great Britain and France for prizes taken during the first two years of the war.
The administration did all that it could to delay a decision on the blockade by Taney’s Court. William Evarts of New York, thought by some to be “the foremost trial lawyer of his day,” urged Attorney General Bates not to let the cases reach the Supreme Courtuntil the Lincoln administration had the chance to appoint some of its own justices to the Court. Bates agreed and did what he could to keep the cases percolating slowly through the lower federal courts. Congress got into the act as well. Even as the first prize cases were being argued at the Supreme Court in February 1863, Congress passed hurried twelfth-hour legislation adding a tenth seat to the Court and giving Lincoln the chance to swing the decision in his favor.
The additional seat on the Court proved unnecessary, but only by the thinnest of margins. On March 10, 1863, Justice Robert Grier of Pennsylvania wrote an opinion for the Court upholding the blockade by a bare 5–4 vote in four cases that came to be known together as the Prize Cases. Grier had long been a vociferous opponent of abolition and a loyal friend of the slaveholder class in controversial fugitive slave cases. In the Dred Scott case, Grier had voted with Taney and the majority. Grier had even colluded behind the scenes with his fellow Pennsylanian, the president-elect James Buchanan, to shape the Dred Scott decision in a way that aimed to take the slavery question out of politics once and for all. With Grier’s support, the decision had effectively declared the antislavery platform of Lincoln’s Republican Party unconstitutional.
Six years later, however, Grier’s opinion in the Prize Cases leaned hard in Lincoln’s favor. Grier skewered the pretensions of citizens of the rebel states seeking to have their vessels restored. Counsel for the vessel owners had protested that “there must be war” before there could be a blockade that would give courts the jurisdiction over prizes. But Grier’s decision rejected the formal distinction between war and crime that the petitioners urged on the Court. “The law of nations,” Grier wrote for the Court’s five-justice majority, was founded on “the common sense of the world.” It contained no “anomalous doctrine” such as the one the vessel owners advocated. It simply was not true that the supporters of the Confederacy could not be “enemies” merely “because they are traitors.” A belligerent party claiming to be sovereign in a civil war, Grier continued, “may exercise both belligerent and sovereign rights,” not because of some arcane legal doctrine but because of good reasons based in practical common sense. Allowing the sovereign to mix war powers with sovereign powers would allow for application of the laws of civilized war; combat in civil wars would thus be regulated by “the milder modes of coercion which the law of nations has introduced to mitigate the rigors of war.” But the law of war’s shield came coupled with a sword. To allow the South to claim the protections of the laws of war without bearing the costs made no sense at all.
Some said Grier had embraced a theory advanced by Republicans on the floor of Congress the previous year. Charles Sumner, who had cast off his pacifism to make war against slavery, had made the point with characteristic panache: “Our case is double,” Sumner announced in the Senate, “and you may call it Rebellion or War, as you please, or you may call it both.” In fact, the theory advanced by Grier for the Court and articulated by Sumner in the Congress was none other than the mixed theory of the April 19 blockade proclamation itself. By establishing a blockade and declaring southern privateers to be pirates, Lincoln had insisted that the preservation of the Union could be a war and a criminal law enforcement action at the same time, that there was no need to choose either paradigm once and for all. With Seward’s help, Lincoln had discovered that the laws of war did not so much restrict his power as augment it. International law offered a respectable power, one that promised to be appropriately restrained and responsible. But it was an awesome power nonetheless. And after the Prize Cases, Lincoln’s mixed theory had the Supreme Court’s endorsement.
NO DECISION BY the Supreme Court could change a basic fact of life about the blockade: huge profits were available for those with the courage and skill to run past it. Merchant captains who had earned $150 per month before the war now made upwards of $5,000 a month as skilled blockade-runners. The price that cotton fetched in England and France increased. And the cost of goods imported to the South shot up dramatically. It was little wonder that the blockade-runners toasted the cotton growers, the blockade, and the British textile manufacturers. “To a long continuance of the war!” went the favorite cheer of the blockade-runners.
The flow of illicit commerce into the South ensured that the legal controversies over the blockade would continue beyond the Prize Cases. Legal loopholes threatened to undo the blockade’s effectiveness, and nowhere were those loopholes more expansive than at the wide estuary where the Rio Grande emptied into the Gulf of Mexico. The sleepy town of Matamoros on the Mexican bank of the river was well known to residents of the United States as the site of the first engagement of the Mexican War in 1846. Fifteen years later, its location on neutral Mexican territory just across the river from Brownsville, Texas, made it a hub for merchants looking to make an end run around the Union blockade. Where a half-dozen vessels might have appeared in any given year, now dozens arrived every week with goods nominally headed for the neutral port but destined to be taken across the river into Texas and the South in return for cotton moving in the opposite direction. By early 1863, the commander of the U.S. Eastern Gulf Blockading Squadron, Captain Theodorus Bailey, reported a flotilla of 200 vessels anchored off the mouth of the Rio Grande. One Union naval officer at Key West concluded that “hope of crushing the rebellion” by blockade would be “utterly in vain” so long as “unlimited supplies” poured through the Rio Grande into Texas.
Secretary Welles determined to bring the Matamoros trade to a halt, but he soon learned how difficult that would be. In February 1862, Commander Samuel Swartout of the USS Portsmouth seized a British screw steamer called the Labuan found floating off the Rio Grande and sent it with a prize crew to report to Flag Officer William McKean, now commanding the Gulf Blockading Squadron. When McKean received the vessel, he was perplexed for there was nothing about it that proved its liability to capture. TheLabuanwas a neutral vessel in neutral Mexican waters. It was loaded not with contraband of war but with cotton. The traditional American rule that free ships made free goods protected the cargo unless the vessel carrying it had run the blockade. But the United States could not blockade the Mexican port of Matamoros without going to war against Mexico. In Washington, Lord Lyons demanded an explanation from Seward, who (hard-pressed to come up with one) deferred the question to the prize court in New York. In May, Judge Samuel Betts in New York—a district judge with thirty-five years experience on the bench—restored the vessel and its cargo to its owners, finding no legal basis for its capture.
Into 1863, the Western Gulf Blockading Squadron seized a parade of British vessels off the mouth of the Rio Grande. But the federal courts adjudged each and every such capture illegal and ordered restitution to the owners of the vessels and their cargo. The Union blockade had run headlong into one of the cardinal rules of the laws of war, a rule that the leading American statesmen of the early republic had done their best to promote and expand: Neutral vessels had a right to carry noncontraband cargo to neutral ports. In case after case out of Matamoros, the federal courts affirmed this principle and ruled against U.S. Navy captors.
IN THE EASTERN GULF, the Union Navy experimented with a new strategy for staunching the gaping hole in the blockade. This time the courts went along.
The British port of Nassau in the Bahamas lay only 180 miles east of Florida. By the fall of 1861, Secretary Welles had become convinced that “large quantities of arms and other articles contraband of war” were being “shipped to Nassau with the avowed object” of being sent from Nassau to “the rebellious ports” of the South. In November, Welles ordered the Navy to stop trade from the Bahamas to the southern coast of the United States. But doing so required that U.S. naval officers distinguish between vessels engaging in protected trade between Europe and the neutral port of Nassau, on the one hand, and those vessels covertly intending to run the blockade into Florida or another blockaded port on the southern coast, on the other. In some cases, the evidence was clear enough that a vessel claiming Nassau as its destination was really destined for a blockaded port. But in others, captured vessels had no ulterior destination beyond Nassau, even though their cargoes were likely to be “transshipped” (to use the maritime vernacular) by a separate vessel to a blockaded port.
The transshipment cases placed the United States in another awkward situation. Ever since the founding days of the republic, Americans had protested the British doctrine of continuous voyage, a doctrine that prevented neutral vessels from engaging in otherwise unlawful commerce by merely adding a pretextual intermediate port to their voyage. The rule had been laid down in the infamous Essex case in 1805 by the British Lords Commissioners of Appeal in order to stop the American merchant fleet from carrying goods between the European Continent and the West Indies. In the run-up to the War of 1812, American war hawks had decried the Essex decision’s theory of continuous voyage as an outrageous imposition on the rights of neutral commerce.
Now, however, the United States took a different position. In February 1863, Commander Thomas H. Stevens of the USS Sonoma captured the English bark Springbok headed for Nassau and loaded with a cargo of contraband. The cargo included brass buttons marked “C.S.N.” and “C.S.A.,” presumably for the Confederate States Navy and Army respectively, along with hundreds of pairs of army boots, gray army blankets, and a small number of sabers and bayonets. The vessel was English-owned and had departed from London for a neutral port. But Stevens took the view that what mattered was the ultimate destination of the cargo. The courts agreed, at least when the cargo was contraband of war. Chief Justice Salmon Chase, whom Lincoln had appointed to replace Taney when Taney died in 1864, ruled that “the voyage from London to the blockaded port” was “one voyage” and that the cargo was thus liable to condemnation “during any part” of the extended voyage “from the time of sailing.”
The United States pushed the doctrine of continuous voyage still further in a capture that brought Chase and the Court back to Matamoros. In late February 1863, the USS Vanderbilt captured the English steamer Peterhoff off St. Thomas in the Virgin Islands carrying a cargo of blankets, men’s army bluchers, and artillery boots. The vessel was headed for Matamoros, and Chase observed (as all courts had observed in the earlier Matamoros cases) that neutral commerce with a neutral port was “entirely free.” TheSpringbok decision meant that contraband cargo intended for transshipment to a blockaded port was subject to capture and condemnation. But the Peterhoff presented a different and still harder problem: not transshipment from Nassau by seafaring vessel to a blockaded port, but inland transportation from the neutral port of Matamoros to enemy territory in Brownsville. In 1801, Sir William Scott of the British Admiralty Court had ruled in the midst of the Napoleonic Wars that the prospect of overland transportation of goods from a neutral port to a blockaded port did not make otherwise free commerce subject to capture. The British, who had long pressed for restrictive interpretations of neutral rights, had thus declined to claim a right to capture goods using overland transportation to circumvent a blockade. But in 1863 Seward and Welles pushed for just such a right, and the courts recognized it. Chase and the Supreme Court ruled that where the cargo was made up of contraband of war, it was subject to capture “when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not.” As in the continuous voyage cases, all that mattered was the intended destination.
Had the United States betrayed its principles? Observers at the time certainly thought so. Lord Russell wrote to the American minister in London that he could hardly believe the United States was really altering its formerly “humane policy” of trying “to assuage and mitigate the horrors of war.” The influential British international lawyer Montague Bernard charged that U.S. reversals of its long-standing positions “raised an inference that general rules of international conduct are practically useless” and merely “trampled underfoot in the heat of passion” or disregarded at the merest hint of a “temporary interest” to the contrary. And historians ever since have seen in Union actions evidence of a hypocrisy embedded deep in the DNA of international law. Frank Owsley, a historian who was a die-hard advocate of the South and president of the Southern Historical Association, put it harshly but essentially captured the views of less partisan historians before and after him. “Old Abe,” Owsley insisted, had “sold America’s birthright for a mess of pottage.”
The problem is that these critiques fundamentally misunderstood the project on which Lincoln and Seward embarked in 1861. As the Court grasped in its Prize Cases opinion of 1863, Lincoln and Seward had adopted a mixed theory of the legal status of the Civil War. They had not invoked the laws of war at sea for the purposes of governing the relationship between the Union and the so-called Confederate States of America—at least not at first. Instead, they had invoked the laws at war for the far more limited project of managing the United States’ relationship with neutral foreign powers, most importantly Great Britain. Lincoln had said just this in the initial draft of his first message to Congress in July 1861 when he wrote that it “scarcely needs to be considered” whether the blockade was “technically a blockade” or not, so long as foreign neutral nations agreed that “as between them and us, the strict law of blockade shall apply.” For the purposes of regulating the relationship with Great Britain, the only important practical consideration was that British statesmen concur with the American interpretations of the laws of war at sea. But this hardly made the international laws of war a hypocritical cloak for underlying Union interests. By adopting the international laws of war at sea, Lincoln and Seward aimed simply to opt into a whole array of ready-made answers to questions arising between the United States and foreign neutrals.
Dozens of such questions appeared during the course of the conflict, and the laws of war supplied a host of useful answers. At various times in the war, the laws of war at sea facilitated the exit of foreign merchants who found themselves anchored in southern ports upon the declaration of the blockade. They governed the status of foreign nationals found aboard blockade-running vessels, ensuring that they were treated as neutral foreign nationals rather than prisoners of war or criminals. Law of war rules resolved thorny questions such as the proper disposition of a captured vessel whose crew had subsequently seized the vessel back from its U.S. Navy prize crew. The same laws of war provided standards to govern the compensation of foreign nationals for injuries they received in the war effort (something the Lincoln administration did repeatedly) and for denying such compensation when appropriate. In each of these controversies, and in myriad others, the law of war helped guide the U.S. and neutral powers down a path toward mutually acceptable resolutions to potentially explosive difficulties. That the United States had reversed its earlier positions on the doctrine of the continuous voyage was no matter, because the Lincoln administration had not committed itself (and never would commit itself) to treating the South as a belligerent entity entitled to all the rights and privileges of warfare. The administration had adopted the laws of war at sea for the much more limited purpose of smoothing its relations with Britain and France.
To be sure, Seward was playing a dangerous game. The usefulness of the law stemmed in no small part from the legitimacy it derived by seeming fixed and durable. If the United States’ careful tailoring of the rules between it and Great Britain came to seem too much like playing fast and loose, the law’s capacity to achieve practical ends such as coordinating conduct in times of crisis might be diminished.
It was a dicey strategy, and Secretary of the Navy Welles (among others) never quite grasped what Lincoln and Seward were up to. Until his death more than a decade after the end of the war, Welles would continue to criticize what he saw as Seward’s blunders: errors of principle to which he thought Lincoln had all too readily consented. But Lincoln and Seward were engaged in something other than a careless abandonment of American principles. What distinguished Lincoln and Seward from Welles was that neither the president nor the secretary of state believed that the rules of war at sea were principles worth fighting for in and of themselves. For them, the rules were means, not ends.