McGinty Brian. Lincoln and the Court

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captain obligingly gave him a letter to the captain of the U.S.S. Niagara, then

blockading Mobile, granting him permission to sail into Mobile for this limited

purpose. The Brilliante then headed toward Mobile, but when safely out of

sight of the Brooklyn it turned north into Lake Pontchartrain, proceeded to a

wharf on the lake side of New Orleans, and discharged its cargo. It then took

on another cargo and headed back into the Gulf of Mexico. On June 23, while

anchored at Biloxi Bay, it was met by the U.S.S. Massachusetts, captured,

and sent to the U.S. district court in Key West. Judge Marvin followed the

lead of the judges in Boston and New York in upholding the legality of the

blockade. Although Mexico was a neutral nation and the Brilliante was not en-

emy property, the ship had ﬂagrantly run the blockade when it entered Lake

Pontchartrain. Accordingly, Marvin entered an order against both the ship and

its cargo, condemning them as prizes.

Appeals from prize court decisions in the district courts were taken to the

U.S. circuit courts. In New York, Supreme Court Justice Samuel Nelson, in his

capacity as a judge of the Second Circuit, devoted a full week to the difﬁcult is-

sues presented by the New York cases. He had serious doubts about the consti-

tutionality of the district court decisions but was reluctant to stand in the way

of the blockade, so he afﬁrmed Betts’s rulings, not because he agreed with them

but because he wanted the whole issue to be taken up by the Supreme Court.

Attorneys for the ship owners pressed for an early Supreme Court hearing, but

the cases could be advanced on the calendar only at the request of the govern-

ment, and Attorney General Bates believed he had no clear grounds for mak-

ing such a request. William M. Evarts, an attorney who had helped present the

government’s cases before Betts, reinforced Bates’s reluctance to advance the

cases by reminding him that the high court still had three vacancies and that

ﬁve of the six sitting justices had sided with Chief Justice Taney in the now-in-

famous Dred Scott decision. Under these circumstances, Evarts argued, the gov-

ernment could not conﬁdently rely on the Supreme Court to sustain the block-

ade.

Thus, with Bates’s acquiescence, the cases were put over to the Court’s

next term, scheduled to begin in December.

The government was encouraged in the summer of 1862 when Justice

Robert Grier, sitting as a circuit judge in Pennsylvania, upheld the blockade on

an appeal from the district court in Philadelphia. Grier was no special friend of

the Lincoln administration, but he was a fervent defender of the Union. “Judge

Grier’s opinion is the more important,” the Philadelphia Public Ledger declared,

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“from the fact that it is the ﬁrst given by a member of the Supreme Court.”

The government was discouraged, however, when Justice Nathan Clifford an-

nounced his decision in a blockade case in November of that year. Clifford had

been sitting as a circuit judge in an appeal from Judge Sprague’s Boston court.

Clifford had never been successful in concealing his Southern sympathies, yet

he was not willing to stand alone in opposition to the blockade. In his opinion

in the case, the New Englander expressed the hope that the Supreme Court

would soon take up the question and added, “My mind is open to conviction

on this great question, if it shall come before me, as one of the judges of the Su-

preme Court.”

Clifford’s admirers and detractors alike could agree that the prize cases pre-

sented a “great question,” but they would be hard put to agree how the Su-

preme Court should answer it, for opinions on the issue varied widely. Oppo-

nents of the blockade argued that Lincoln exceeded his constitutional powers

when he proclaimed the blockade and that all of the ships condemned as prizes

of the war were wrongly taken from their owners. The president’s chief legal of-

ﬁcer, Attorney General Bates, was concerned that the blockade might be

struck down, for he, like all administration ofﬁcers, realized the enormous con-

sequences that could ﬂow from an unfavorable Supreme Court ruling. It was

not merely the blockade that would be at stake but potentially all of the deci-

sions Lincoln had made as commander in chief. If the president had no author-

ity under the Constitution to blockade the Confederate States, what authority

did he have to call up the militia in the ﬁrst days of the rebellion? To suspend

the privilege of the writ of habeas corpus when federal troops were assaulted on

their passage through Maryland? Or to emancipate the slaves in states or parts

of states in rebellion against the government? If the commander in chief’s

hands were tied, the war effort could be crippled, and immeasurable damage

could be inﬂicted on the nation’s standing in the world community. As the

Washington Republican editorialized: “How deeply these questions touch the

powers of our Government, at this interesting period, can at once be seen; and

the decision of the Supreme Court upon them cannot fail to be one of the most

grave duties of their session.”

the court had reached full strength by the second week of February

1863, when it met to hear arguments in four prize cases appealed from the dis-

trict courts. Noah Swayne, Samuel Miller, and David Davis were all on hand,

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as were the old judges from the Dred Scott days—Taney, Wayne, Catron, Nel-

son, Grier, and Clifford—to hear a panel of what one contemporary called “the

ablest lawyers of the country” argue the merits and weaknesses of the block-

ade.

There were nominally four cases—The Amy Warwick, on appeal from

Judge Sprague’s court in Boston, The Hiawatha and The Crenshaw, from Judge

Betts’s New York court, and The Brilliante, from Judge Marvin’s district court in

Key West. But the cases had been consolidated for argument under the overall

title of the Prize Cases.

Attorney General Bates was the principal attorney for the United States,

although—bowing to the realities of the litigation and the difﬁcult legal ques-

tions involved—he delegated the arguments to Charles Eames, William M.

Evarts, Richard Henry Dana, Jr., and Charles B. Sedgwick. Eames was a Har-

vard graduate who had worked for the Navy Department in Washington,

edited a Washington newspaper, and served as U.S. minister to Venezuela

before becoming one of the busiest attorneys in the wartime capital. He often

represented the Navy Department on important business and had earned Sec-

retary Welles’s accolade as “the most correct admiralty lawyer in the country.”

Evarts was a grandson of Roger Sherman (a signer of both the Declaration of

Independence and the Constitution), a friend and political supporter of Secre-

tary of State Seward, and one of the most admired courtroom lawyers in New

York. He played a leading role in the prosecution of prize cases that came

before Judge Betts, but his practice in both New York and Washington was

wide and broad. Sedgwick was a lawyer and Republican congressman from Syr-

acuse, New York, who was just completing a term as chairman of the House

Committee on Naval Affairs. Appearing on behalf of the claimants in The

Amy Warwick was Edward Bangs, one of the Boston attorneys who had ar-

gued the case before Judge Sprague. The claimants in The Hiawatha and The

Crenshaw were represented by Daniel Lord, a veteran of appellate litigation, as-

sisted by Charles Edwards and Charles Donohue. James M. Carlisle, a close

friend of Chief Justice Taney, represented the claimants in The Brilliante.

The Supreme Court’s Capitol chamber was crowded with spectators as the

justices took their seats on Tuesday, February 10, to hear the opening argu-

ments in the case. For twelve days, they listened patiently as the attorneys ar-

ticulated their positions.

On behalf of the Brilliante’s owners, Carlisle led off with a vigorous attack

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on the power of the president to blockade the Southern coast. The chief exec-

utive had no such power, he said, because a blockade was a war measure and

the Constitution gave Congress, not the president, the power to declare war.

The Constitution makes the president the commander in chief, but that desig-

nation merely gives him the power to command the armed forces. It does not

give him power to make laws, to change laws, or in any other way to exercise

the powers of Congress. “He is to act as Commander-in-Chief,” Carlisle as-

serted, “not as legislator or Emperor. To say that he can ‘declare war,’ because

in the event of war he commands the Army, Navy and Militia in service, when

war is declared, under the Constitution, is absurd.”

At least three of the jus-

tices were delighted with Carlisle’s argument; immediately after the hearing,

Justice Catron wrote the attorney a congratulatory letter in which he said that

he, Nelson, and Clifford were anxious to have the argument printed verbatim

in the Court’s reports.

Charles Eames followed with an argument on behalf of the government.

The substance of Eames’s argument has been lost because it was not printed in

the Court’s reports, though the suspicion is strong that he badly overstated the

government’s position, for several of the justices later expressed dissatisfaction

with his presentation. Justice Swayne felt so strongly about Eames’s argument

that he called on Bates after the hearing was over and complained that Eames’s

“speech” was “no argument at all,” that he had acted “like a harlequin” and

turned the solemn proceedings “into a farce.” Swayne told Bates that Taney

had made a cutting remark about Eames’s argument. Alluding to the recent

court-martial of Union brigadier general Fitz John Porter, in which Eames had

unsuccessfully attempted to defend the general against charges of misconduct

at the Second Battle of Bull Run, Taney said he no longer wondered at Porter’s

conviction (he was cashiered from the army in January 1863), adding, “He de-

served to be convicted for trusting his case to such a counsel!” Bates thought

all of this criticism “very unjust” and believed that it showed “a degree of pas-

sion and prejudice not very creditable to that high court.”

But it also indi-

cated that at least some of the justices were likely to rule against the govern-

ment’s position.

William Evarts’s argument was much more effective than that of Eames.

He argued that the rebellion in the Southern states was both a war and an in-

surrection and that, in meeting it, the government was not compelled to

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choose one theory or another. A state of war was a question of fact and did not

depend on a declaration by Congress. When the insurrection began in the

South, Evarts said, the president was confronted with a war, and it was his duty

to respond to it.

Dana’s argument was thought by many observers to be the most effective

of all. He reiterated many of the same points as Evarts but expanded on the is-

sue of “enemy property.” It was a vexing legal question and one that the judges

did not all agree on. The capture of ships at sea, Dana said, was “the most mild

and humane form of war,” for it amounted to taking the enemy’s property

rather than his life. A blockade interfered with the enemy’s ability to conduct

proﬁtable business at sea, and that was always preferable to killing the enemy

on land. Charles Francis Adams, Jr., son of Lincoln’s minister to Great Britain,

was in the courtroom during Dana’s argument. He later called it a “luminous

and exquisite presentation.” “Dry legal questions were lifted into the higher re-

gions of international discussion,” Adams said, “and the philosophy of the bar-

baric right of capture of private property at sea was for the ﬁrst time in the

hearing of most of the judges then on the bench applied to the pending situa-

tion with a power of reasoning and a wealth of illustration and felicity of style

that swept all before them.”

After Dana ﬁnished, Adams encountered Justice

Grier in the corridor behind the bench. Grier had enjoyed the presentation

and, in a burst of what Adams called “unjudicial enthusiasm,” said to him:

“Well, your little ‘Two Years Before the Mast’ has settled that question; there is

nothing more to say about it!”

Dana wrote to the assistant U.S. district attorney in Boston, Thornton K.

Lothrop, saying that he had “won Judge Grier’s heart. He pats me on the shoul-

der and says I have cleared up all his doubts, and that it is the best argument he

has heard for ﬁve years, etc. The Attorney-general seems quite overcome with

his emotions on the subject, and cannot say enough. Seward is ﬂattering, and

others.”

The court heard the last arguments in the Prize Cases on February 25, then

took the case under submission. Despite all the compliments he received, Dana

was not sure that his side would prevail. He was in a reﬂective mood when he

wrote Minister Adams in London:

These causes present our Constitution in a new and peculiar light. In

all States but ours, now existing or that have ever existed, the func-

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tion of the judiciary is to interpret the acts of the government. In ours,

it is to decide upon their legality. The government is carrying on a

war. It is exerting all the powers of war. Yet the claimants of the cap-

tured vessels not only seek to save their vessels by denying that they

are liable to capture, but deny the right of the government to exer-

cise war powers,—deny that this can be, in point of law, a war. So the

judiciary is actually, after a war of twenty-three months’ duration, to

decide whether the government has the legal capacity to exert these

war powers. This is the result of a written Constitution, as a supreme

law, under which there is no sovereign power, but only coordinate de-

partments.

Dana correctly identiﬁed the question that the Prize Cases presented. It

was whether the president of the United States had acted within his constitu-

tional power as commander in chief when he proclaimed a blockade of Con-

federate ports. Now the Supreme Court of the United States was to decide

whether the president had acted legally. It was, as Dana asserted, a question

that could not be asked in any other nation in the world in 1863, for no other

nation was subject to the same constitutional strictures as the United States,

and the acts of no other government were subject to the same judicial review as

those of the government headed by Abraham Lincoln. But it is difﬁcult to

agree with Dana’s conclusion that this system, based on a “written” constitu-

tion, reﬂected weakness rather than strength. In his letter to Minister Adams,

he continued:

Contemplate, my dear sir, the possibility of a Supreme Court deciding

that this blockade is illegal! What a position it would put us in before

the world whose commerce we have been illegally prohibiting, whom

we have unlawfully subjected to a cotton famine and domestic dan-

gers and distress for two years! It would end the war, and where it

would leave us with neutral powers it is fearful to contemplate!...

The bare contemplation of such a possibility makes us pause in our

boastful assertion that our written Constitution is clearly the best

adapted to all exigencies, the last, best gift to man.

Dana may have been more encouraged about the American constitutional

system when the Supreme Court assembled on March 10 to announce its deci-

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sion in the Prize Cases. The courtroom was thronged once again, not merely

because the justices were to hand down a deﬁnitive pronouncement on the

blockade, but also because their long-awaited decision in the case of Castillero

v. United States was to be announced. That litigation involved conﬂicting

claims to the ownership of the New Almaden quicksilver mine in California,

an incredibly valuable property that represented an important ﬁnancial re-

source for the Union war effort (quicksilver was used in reﬁning gold and sil-

ver, and gold and silver from Western mines were mainstays of the Union’s

war economy). Justice Clifford spent three hours reading his opinion in the

Castillero case.

Justice Grier took somewhat less time to read his opinion in

the Prize Cases, but there was no lack of interest in his words. The minutes of

the Court reveal that Chief Justice Taney was “prevented by indisposition from

attending” (“indisposition” had long since become a habit with the now-

eighty-six-year-old justice), though he had authorized his colleagues to say that

he concurred in Clifford’s opinion and dissented from Grier’s.

Grier began by identifying the two key questions in the case:

1st. Had the President a right to institute a blockade of ports in pos-

session of persons in armed rebellion against the Government, on the

principles of international law, as known and acknowledged among

civilized States?

2d. Was the property of persons domiciled or residing within those

States a proper subject of capture on the sea as “enemies’ property?”

He acknowledged that the law of blockade had its origins in the jus belli, or

law of war, and that a blockade could be justiﬁed only if there was an actual

war. But he rejected the argument that, because the secessionist states were in

insurrection, there was no war and the government could not treat the insur-

rectionists as enemies. He also rejected the argument that, because Lincoln re-

garded the Confederacy as a mere “combination” of rebels, and because Con-

gress had never declared war against the Confederate States, the government

could not regard the secessionists as “belligerents.” He wrote:

It is not necessary to constitute war, that both parties should be ac-

knowledged as independent nations or sovereign States. A war may

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exist where one of the belligerents, claims sovereign rights as against

the other.

Insurrection against a government may or may not culminate in an

organized rebellion, but a civil war always begins by insurrection against

the lawful authority of the Government. A civil war is never solemnly

declared; it becomes such by its accidents—the number, power, and

organization of the persons who originate and carry it on. When the

party in rebellion occupy and hold in a hostile manner a certain por-

tion of territory; have declared their independence; have cast off their

allegiance; have organized armies; have commenced hostilities against

their former sovereign, the world acknowledges them as belligerents,

and the contest a war.

Grier acknowledged that, under the Constitution, Congress alone has the

power to declare war. But he noted that the Constitution gives the president

“the whole Executive power” of the government. It commands him to “take

care that the laws be faithfully executed,” and it makes him “Commander-in-

Chief of the Army and Navy of the United States, and of the military of the

several States when called into the actual service of the United States.” Grier

continued:

This greatest of civil wars was not gradually developed by popular

commotion, tumultuous assemblies, or local unorganized insurrections.

However long may have been its previous conception, it nevertheless

sprung forth suddenly from the parent brain, a Minerva in the full

panoply of war. The President was bound to meet it in the shape it

presented itself, without waiting for Congress to baptize it with a

name; and no name given to it by him or them could change the fact.

It would be anomalous, Grier said, to require that the government declare

that “insurgents who have risen in rebellion against their sovereign, expelled

her Courts, established a revolutionary government, organized armies, and

commenced hostilities” are not enemies because they are traitors, or to argue

that “a war levied on the Government by traitors, in order to dismember and

destroy it” was not a war because it was an insurrection. Whether the president,

in fulﬁlling his duties as commander in chief, regarded the hostile resistance to

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the government as serious enough to treat the insurrectionists as belligerents

was, Grier said, “a question to be decided by him” and not the Court. “He must

determine what degree of force the crisis demands.”

Even if the president had no authority to meet the insurrection with a

blockade, Grier pointed out that Congress had approved and ratiﬁed all of his

acts and orders “as if they had been done under the previous express authority

and direction of the Congress.” “Without admitting that such an act was nec-

essary under the circumstances,” Grier said, “it is plain that if the President had

in any manner assumed powers which it was necessary should have the author-

ity or sanction of Congress, . . . this ratiﬁcation has operated to perfectly cure

the defect.”

Grier’s opinion was strong and emphatic, but not strong or emphatic

enough to convince more than ﬁve members of the Court. Justice Nelson ﬁled

(but did not read) a dissent in which he stated that the president could not be

invested with the power to wage war until Congress acted to either declare war

or “recognize its existence.” Nelson said that Congress did not ﬁnally “recog-

nize” the existence of the war between the North and South until July 13,

1861, when it authorized the president to take decisive action against the in-

surgents. Before that, he wrote, the chief executive “had no power to set on

foot a blockade under the law of nations.” Accordingly, all of the ships that

were captured before July 13 were illegally captured and should be restored to

their owners.

Grier’s opinion was concurred in by Justices Swayne, Miller, and Davis.

The only other justice from the old Dred Scott coalition who sided with it was

James Wayne, the courtly Georgian who was steadfastly loyal to the Union

throughout the war. Nelson’s dissent was, not surprisingly, supported by the

“indisposed” chief justice. It was also supported by Justices Catron and Clifford,

though it is difﬁcult to determine with what enthusiasm. According to newspa-

per reports, Catron left the bench before the reading was concluded (he had

apparently joined Taney in “indisposition”), and Clifford decided only at the

last minute to join in the dissent. Thus the opinion upholding Lincoln and the

blockade was sustained by the narrowest of margins, only ﬁve to four. Without

the support of the three Lincoln justices, it would have faced certain defeat.

Although four judges joined in the dissent, Nelson’s opinion was narrowly

tailored. He did not broadly condemn the administration’s prosecution of the

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war; he merely found the authority for it lacking before Congress “recognized”

the war on July 13, 1861. After that date, the war was prosecuted with the full

authority of Congress and met the requirements of the Constitution. If Nel-

son’s opinion had commanded the support of a majority of the justices, the

Union’s war effort would undoubtedly have suffered a major setback. The lia-

bility claims of those whose ships had been captured and condemned would

have been enormous, and the anger expressed by foreign powers such as Great

Britain and France, whose shipping had been “illegally” disrupted, would have

been, to adopt Dana’s words, “fearful to contemplate.” But it is hard to imagine

that Lincoln could not have recovered from the setback. Northerners would

have protested another Supreme Court decision (Dred Scott was the ﬁrst) that

arrayed the federal judiciary against their region and raged at yet more evi-

dence of the pro-Southern tilt of the high bench. It was unnecessary to con-

template that unhappy consequence, however, because ﬁve members of the Su-

preme Court sided with the administration.

Newspaper editors in the North recognized the importance of the decision

in the Prize Cases, even if they did not all endorse it. The New York Times

thought the decision had crushed the hope of the Copperheads “to cast a vast

burden upon the Treasury by annulling the blockade,” and predicted that the

Supreme Court would now “indorse the constitutional validity of every impor-

tant act of the Executive or of Congress thus far in the rebellion.”

But the

New York World disagreed, arguing that the “reasoning of the minority seems to

be decidedly the stronger, and more accordant with the spirit as well as letter of

the Constitution.”

Some years later Thornton K. Lothrop, a Boston attorney who knew Rich-

ard Henry Dana, Jr., well, reﬂected on the Prize Cases and their signiﬁcance in

the prosecution of the war. He recognized that the decision had resolved a

great doubt that was hanging over the administration’s war effort and im-

mensely strengthened the hand of those who were struggling to preserve the

Union. And he gave much of the credit for the successful outcome to Dana. He

said that Dana’s argument before the high tribunal had provided the justices

with the legal grounding they needed to sustain the blockade. It had, in

Lothrop’s words, “rescued them from their apprehended peril. It satisﬁed the

court that the government could at the same time treat the South both as re-

bels and belligerents, without giving the owners of neutral vessels violating the

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