Abraham Lincoln and the Development of Presidential War-Making Powers: Prize Cases (1863) Revisited

Abraham Lincoln and the Development of Presidential War-Making Powers: Prize Cases (1863) Revisited LudwellH. Johnson, III "To read 'the laws and customs of war' is a disheartening business. Not so long ago students of international law learned of established rules on a variety of subjects . . . but now the mere mention of such rules seems curiously dated." So wrote the late James G. Randall on June 20, 1950, in the preface to the revised edition of his Constitutional Problems Under Lincoln. One of the dated rules he listed was "the manner of beginning hostilities." Had he written a few days later, he might have added the curiously dated idea that congressional consent was required to plunge the nation into a major war, for on June 27 President Harry S. Truman ordered United States air and naval forces to defend South Korea and proclaimed a naval blockade ofNorth Korea—all without the authorization of Congress. At the same time, Randall must have reflected that Truman's actions were by no means without precedent in American history; Abraham Lincoln had done much the same thing eighty-nine years earlier. The difference lay in the fact that Lincoln's actions met with a formidable challenge in the Federal courts, a challenge rooted not only in the Constitution, but involving international law as well. The perils ofthe present have lifted this subject from the level of mere legal antiquarianism. The power of the executive branch to take the country into war has always been present, but its enormous augmentation in an age when war may be apocalyptic in scale surely would have made Randall acutely conscious of an irony: that the man whom he so admired, and whose actions he saw as so beneficent and necessary to the survival of the last best hope of earth, should have shown Civil War History, Vol. XXXV, No. 3, ® 1989 by the Kent State University Press presidential war-making powers209 the way to an extraordinary enlargement ofexecutive warauthority which, in the modern world, carries with it the possibility of annihilation. ' In the nineteenth century "war" had two meanings. One was popular or material, the other legal. The first connoted large-scale organized military conflict; the second was a condition rooted in the law ofnations and carrying with it fairly definite rights and obligations. There was no doubt that the events following the attack upon Fort Sumter eventually constituted a war in the popular sense. But what was its legal nature? The answer to that question involved issues of the gravest importance, such as the manner of conducting the war, who were enemies and what kind of enemies they were, what were the rights and obligations of the combatants and of neutrals , what was enemy territory, and so forth. It also involved most conspicuously the matter ofpresidential war powers. When Abraham Lincoln, in April 186 1 , notified neutral nations that he was instituting a blockade of the southern coast,2 he entered the realm of international law by claiming certain rights vis-à-vis other nations, rights that existed only in war. This guaranteed that the question of the nature of the war would come into the Federal courts, and with it the right of the president to initiate war. Within a month of Lincoln's blockade proclamations, Union warships were capturing vessels and sending them to Federal district courts for condemnation on grounds ofviolating the blockade or of being enemy property .3 Some were British-owned ships; others were owned by persons domiciled in the Confederate states and thus deemed to be territorial enemies, even ifthey were individually loyal to the United States. These grounds for condemnation were recognized by international law only in the présence of a public or civil war.4 The most significant argument used by counsel for the owners of these vessels was that because the Constitution reserved to Congress the right to declare war, the president could not do so by proclaiming a blockade or by any other act. If there was no war, there was no blockade, nor could there be persons whose status as enemies was fixed merely by their residence in enemy territory. 1 James G. Randall, Constitutional Problems...