The Confederacy: What Was It?: The View from the Federal Courts

THE CONFEDERACY: WHATWAS IT? THE VIEW FROM THE FEDERAL COURTS Ludwell H.Johnson III SEVEN DAYS AFTER the outbreak of hostilities at Fort Sumter, President Abraham Lincoln proclaimed a blockade of ports in tiie seven seceded states where an "insurrection" had broken out.1 For reasons that need not be explored here, it was widely believed in the Nortii tiiat the preservation of the Union depended upon enforcing Federal tariff and navigation laws and preventing the South from trading freely with the rest of the world. Lincoln had considered expedients other than a blockade to cut off such trade, "floating custom houses" being one, but they had proved to be impracticable . Merely to close the ports by executive proclamation would have first required an act ofCongress, which was not in session. And in any event, Great Britain and other maritime powers would not have recognized the closure by municipal decree ofports in hostile possession, such action being deemed contrary to international law.2 A blockade was a measure that existed only in the law of nations and could be justified only by the fact of war. As defined by that law and as opposed to some lesser form ofconflict, war presumed the existence ofan antagonist with a functioning government capable ofwaging it. This was a presumption the Lincoln administration was desperately anxious to avoid. For one thing, the suppression of insurrection was clearly within the constitutional and legal authority of the president, but to concede that there was a civil war would have put tiie government in the position ofattacking states of the Union—to many Northerners a clearly unconstitutional action . Furthermore, Republican political gospel required that the troubles in the South be attributed to a relatively small conspiratorial minority; otherwise the party's policies would doubtless be blamed by many as hav- ' Roy P Basier and others, eds., The Collected Works ofAbraham Lincoln (New Brunswick , N.J.: Rutgers Univ. Press, 1953), 4:338. * L. H. Johnson " 'The Few Brave and Hungry Men': Another Look at the Fort Sumter Crisis," South Atlantic Quarterly 84 (1985): 84-85; Lord McNair, ed., International Law Opinions (Cambridge: Cambridge Univ. Press, 1956), 2:384, 386-87. Civil War History, Vol. XXXII, No. 1, ©1986 by The Kent State University Press O CIVIL WAR HISTORY ing provoked a genuine revolutionary movement that threatened to dismember the Union. Finally, the nature of the conflict might be used by foreign powers as evidence ofthe political character and legal rights ofthe Confederate government. In a civil war, as opposed to less organizedforms ofcombat, the rule ofthe day was for each party to accord belligerent rights to the other, and thus, for the purposes of waging war, to treat the revolutionary government as ifit existed de facto. But Lincoln and Seward feared to do anything that implied the recognition ofthe Confederacy as a de facto government, for neutrals might then find it easier to take the next step and recognize it de jure. Under the circumstances this would have significantly advanced the cause of Southern independence.3 To proclaim a blockade was to assert belligerent rights not only against the Confederacy, but against neutral nations as well. Immediately the latter were compelled to take a position concerning the rights ofboth contestants , for their ships would be liable to seizure as prize of war if intercepted while trying to run the blockade." Because the law ofprize was part of the law of nations, a blockade carried the conflict into the international arena. Neutrals, if they were in fact to be neutral, had no choice but to accord the Confederacy the same belligerent rights as those asserted by the United States. As Foreign Secretary Lord John Russell once told Charles Francis Adams, American minister to London, "It was . . . your own government which, in assuming the belligerent right ofblockade, recognized the Southern states as belligerents. Had they not been belligerents, the armed ships ofthe United States would have had no right to stop a single British ship upon the high seas."5 These pitfalls led Lincoln to use phraseology suggesting that the blockade announced on April 19 was actually something less than a blockade, and to insist that the war upon which...