Prize Cases

Prize Cases, 2 black (67 U.S.) 635 (1863), argued 10–13, 16–20, 23–25 Feb. 1863, decided 10 Mar. 1863 by vote of 5 to 4; Grier for the Court, Nelson, joined by Catron, Clifford, and Taney, in dissent. On 19 April 1861 President Abraham Lincoln ordered a blockade of Confederate ports, and later that month he extended the blockade to the recently seceded states of Virginia and North Carolina. On 13 July Congress authorized Lincoln to declare that a state of insurrection existed, and on 6 August Congress retroactively ratified all of Lincoln's previous military actions.

The Prize Cases involved libels against four different ships and their cargoes seized before 13 July. The Amy Warwick contained coffee and was en route to Richmond. The Court upheld its seizure as “that of enemies' property” (p. 675). The Hiawatha was a British ship caught in Richmond when the Civil War began. The ship's captain was on notice that all neutral ships had to leave Richmond within fifteen days after the blockade began. Because of the failure to obtain a tow, the ship was unable to leave port until a few days after the blockade became effective, although its cargo was loaded within the fifteen‐day period. The Court affirmed the condemnation of both the ship and its cargo. The Brilliante was a Mexican ship that entered New Orleans more than a month after the blockade was established. The ship was captured after leaving New Orleans, and the Court upheld the condemnation. The Crenshaw, owned by citizens of Richmond, was captured taking tobacco to England. This ship presented a straightforward question of enemy property. The Court upheld the libel against both the ship and its cargo.

While involving many different technical issues, the cases all turned on one key question: did the president have the power to impose the blockade without congressional authorization? Lincoln argued that a state of insurrection existed after the firing on Fort Sumter and that he was empowered to take unilateral action against this situation. In supporting Lincoln on this issue, the Supreme Court upheld his theory of the Civil War as an insurrection against the United States government that could be suppressed according to the rules of war. In this way the United States was able to fight the war as if it were an international war, without actually having to recognize the de jure existence of the Confederate government.

In the Prize Cases Justice Robert Grier held that “a blockade de facto existed” after Lincoln's proclamations and that as “Executive Chief of the Government and Commander‐in‐Chief of the Army and Navy,” Lincoln “was the proper person to make such notifications” (p. 666). Grier argued that a war could exist even if one party did not recognize the sovereignty of another. He noted that, as “civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know” (p. 667). Here the Court took notice of the war and Lincoln's response to it.

In dissent Justice Samuel Nelson argued that “no civil war existed between this Government and the State in insurrection till recognized by the Act of Congress” on 13 July and that the president did not have the power, under the Constitution, to either declare war “or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war” (p. 698). Nelson believed that only Congress possessed such powers and thus that the seizures under the blockade were illegal.

In the Prize Cases the Court narrowly approved Lincoln's theory of the Civil War as a domestic insurrection with the attributes of an international war. For domestic constitutional purposes the Court affirmed the power of the president to act as if he were merely suppressing an insurrection, while for purposes of international relations, the Court held out to the world that the South was a belligerent and could be legally blockaded. The theory of the war accepted in this case implied that other actions by the president, including the Emancipation Proclamation and the suspension of habeas corpus, were also constitutionally permissible, especially when supported by subsequent congressional approval.

See also Presidential Emergency Powers.

Bibliography

Stewart L. Bernath , Squall across the Atlantic: American Civil War Prize Cases and Diplomacy (1970).

Paul Finkelman