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 built a 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 Court until 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 d
eclaring 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. The Labuan was 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.” The Springbok 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.”
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