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The Prize Cases

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My recent reading includes a review, by friend Henry, of SLAVISH SHORE, a new book from Harvard University Press about the life of Richard Henry Dana Jr.

Dana argued the Prize Cases before the US Supreme Court in February 1863.  At issue: when is a war a war? when is a blockade a blockade? was Lincoln's action in pursuing a war through the imposition of a blockade lawful?  As Henry explains it: "A blockade is a war measure, and a President is authorized under his war powers to impose a blockade only when Congress has declared war against another nation....Lincoln denied that the Confederate states were a nation, he insisted that they were mere insurrectionists and traitors. No one questions that Lincoln could have closed the ports, as opposed to blockading them, but Britain had 'made it clear that it would not accept American "closure" of Southern ports that would expose British shippers to arrest as common smugglers.'"

In that last half sentence, Henry is of course quoting Jeffrey L. Amestoy, the author of the book under review.

So to avoid war with England, Lincoln had to call his closing of the ports a blockade, without calling the CSA a foreign country.

The owners of the seized shipping and cargo wanted it back, and the government wanted to sell it under the Prize law.

Dana persuaded a majority of the court that war is "a state of things, and not an act of legislative will." There plainly was a war underway, whether it be called a war, declared as such, or fought against a sovereign power, or not. And this meant that the closing of the ports was a blockade, whatever the President might do in his diplomatic capacity to avoid another war (properly speaking!) with a foreign power.

Good job, Dana. Good job, Jeffrey and Henry too.

Comments

  1. Christopher,

    Thank you for your compliment. You assume that a closure and a blockade are the same thing. Are they? I don't know, and Amestoy does not make this clear. If they are different, then what is the physical difference between them? Amestoy writes:

    "[A] government engaged in the suppression of an insurrection could 'close' its domestic ports but could not, according to accepted tenets of international law, 'blockade' them." Does Amestoy mean merely that a government could call it a closure but could not call it a blockade?

    Secretary of the Navy Gideon Welles, Amestoy continues, said "that a port closure would be 'legally ... impregnable' but a blockade was unlikely to be sustained by a federal court." But, if the distinction between closure and a blockade were a fiction, then wouldn't a court see through it?

    Amestoy writes, "Her majesty's government made clear that it would not accept American 'closure' of Southern ports that would expose British shippers to arrest as common smugglers. A 'blockade,' on the other hand, would enable England to exercise the rights of a neutral nation." What rights are those? I find it hard to believe that these rights depended upon the label that that Lincoln applied to his action, but Amestoy's quotation marks around "closure" and "blockade" suggest that they did. Is there a maritime lawyer in the house?

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  2. This question may be simpler than I thought. To close a port is to allow no one in; that's why it would have exposed British shippers to arrest as common smugglers. To blockade a port may be to prevent enemy shippers, but not neutral shippers, such as the British, from entering it.

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  3. If my simple explanation is correct, then I blame Amestoy for misleading me with his unnecessary quotation marks around "close" and blockade" in the second paragraph of my first comment, and around "closure" and "blockade" in the fourth. The quotation marks wrongly implied that he was referring to words, not things.

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  4. My guess is that the distinction was just what the scare quote marks suggests: it was a legalistic one without reference to what physically happened on the relevant ports. The importance to the Brits arose out of their domestic politics: the textile industry was very unhappy about the need to get their cotton from distant India (requiring arduous trips all around the continent of Africa) given the closure/blockade of Confederate ports. Those interests would have loved to have Britain go to war with the US, secure the CSA's independence, and resume the easy cotton flow. The notion that Lincoln's blockade was illegal was as good a pretext as any, even if much had to be made of a word. On the other hand, the British govt realized that there was considerable anti-slavery sentiment in their public, and open support of the CSA would not be politically palatable. So dithering over words came about as a way of expressing deeper sentiments that dared not speak their names.

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  5. Christopher, don't you mean, "the textile industry WOULD HAVE BEEN very unhappy about the need to get their cotton from distant India (requiring arduous trips all around the continent of Africa) IF LINCOLN HAD CLOSED THE Confederate ports"? But, because Lincoln merely blockaded the ports, England, being a neutral nation, could use them and did not need to go to war.

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  6. No, I'm pretty sure the closing/blockade had the effect of sharply limiting cotton shipments from getting out of the Confederacy, although to a certain extent risk-taking blockade runners could slip through. I'll link you to an article on "Cotton and the Civil War." Skim down about half way to the paragraph beginning, "Nevertheless, the Confederacy was able to use...." http://mshistorynow.mdah.state.ms.us/articles/291/cotton-and-the-civil-war

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  7. Christopher,

    The gist of the paragraph beginning, "Nonetheless, the Confederacy was able to use cotton as a bartering tool to fund the purchase of weapons" is that the blockade didn't work as well as the Union had hoped it would. But it did, to a degree, prevent the British from using the ports. Perhaps, then, a blockade and a closure were physically the same thing, and the only difference in the name applied was that calling it a blockade would not subject British shippers to arrest. If we'd had this discussion before, then, in my review of Amestoy's book, I would have criticized the book for leaving this matter unclear. But I will drop it for now.

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