The Prize Cases of 1863 and How Lincoln Fought a War Before Congress Met

Here is a constitutional puzzle that would make a fine bar exam question. The Constitution gives Congress the power to declare war. Confederate guns open fire on a federal fort on April 12, 1861. Congress is not in session and will not be for nearly three months. The President has no army worth the name, a rebellion in seven states, and a Capitol that is, by the standards of any sensible general, indefensible. Does he wait for the legislature to come to town, or does he do something?

Abraham Lincoln did something. He did a great deal of it, in a very short time, and a good part of it was of doubtful legality. Two years later the Supreme Court was asked whether any of it counted. The answer, delivered by a margin of a single vote, is the Prize Cases, and the case is where American law first drew a line between a President who defends the country against attack and a President who starts a war on his own.

The first hundred days

Fort Sumter fell on April 13, 1861. On April 15, Lincoln issued a proclamation calling forth the militia of the states, 75,000 men, to suppress the combinations obstructing the laws in seven Southern states. The same proclamation summoned Congress to meet in special session, on July 4. That interval is the heart of the case. For eleven weeks Lincoln governed the war alone.

On April 19, he proclaimed a blockade of the ports of the seceded states, from South Carolina to Texas. On April 27 he extended it to Virginia and North Carolina. In May he increased the size of the regular army and navy beyond what the statutes authorized, called for volunteers, and ordered the suspension of the writ of habeas corpus along certain military lines, an action that provoked Chief Justice Taney's opinion in Ex parte Merryman. He authorized the expenditure of public money without an appropriation, advancing funds to private agents to buy arms.

Lincoln knew exactly what he was doing and said so. When Congress met on July 4, he told it in a message that the calls for volunteers and the additions to the regular army and navy, whether strictly legal or not, had been ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them. That sentence is the statement of a man who understood that he had gone to the edge of his authority and wanted the legislature to know it.

The ships

A blockade has to be enforced, and enforcement in the law of nations means seizure. Union warships stopped ships trying to run it, and the vessels and cargoes were brought before federal courts as prizes, the old naval term for a captured ship, to be condemned and sold, with the proceeds divided among the captors.

The Supreme Court heard four consolidated cases, from which it took its name. The Amy Warwick was a merchant vessel sailing from Rio de Janeiro with a cargo of coffee, owned by residents of Richmond, captured by a Union vessel in July 1861, after the war began. The Crenshaw, the Hiawatha, and the Brilliante were captured on similar charges while trying to run the blockade or carry goods in and out of Confederate ports. The owners of the ships and cargoes argued that the captures were unlawful, because no blockade could be lawful without a state of war, and no state of war existed in the eyes of the Constitution because Congress had not declared one.

That was a real legal argument, and a good one. It asked a question that the Constitution makes pointed. Article I, section 8 gives Congress the power "To declare War." What kind of war can a President wage when Congress has not?

The decision

The case was argued in February 1863 and decided on March 10, 1863. The Court held by a vote of 5 to 4 that the blockade was lawful and the captures valid.

Justice Robert Grier wrote for the majority. His opinion makes three moves, and each one is worth stating.

1. The President may meet an attack with force without waiting for Congress. The classic sentence is this:

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority."

The reasoning rests on the Take Care Clause and the Commander-in-Chief Clause and on a historical point. The Framers at the Constitutional Convention had changed the draft language of Congress's power from "make war" to "declare war" precisely to leave the President the power to repel sudden attacks. Madison's notes of the debate on August 17, 1787, record the change. The majority treated the clause as an allocation: Congress decides when the country enters a war of choice; the President answers an attack on the country.

1. The existence of a war is a question the President may decide. A civil war is a war in fact, whatever the rebels or the Union may call it. Grier reasoned that whether the President, in suppressing an insurrection, has met such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to the insurgents the character of belligerents, is a question to be decided by him. And the Court would respect his judgment, because it was the political department's decision about the facts. The Court held that whether the hostile party is a foreign invader or states organized in rebellion, it is none the less a war, although the declaration of it be unilateral.

1. Congress ratified the acts. The majority noted that Congress, at its special session, had passed the act of August 6, 1861, approving and making valid all the acts, proclamations and orders of the President respecting the army, the navy and the militia as if they had been issued under the previous express authority of Congress. Grier said that if the President's actions had required authority before, they had it now. This made the question of prior authority moot, at least in part.

The result is not an unlimited grant of power. The majority drew its line carefully: the President has the power to meet an attack and to treat a rebellion as a war. It does not say that he may begin a war against a foreign nation, or that the unilateral acts of a President in peacetime can take the place of a congressional declaration.

The dissent

Justice Samuel Nelson wrote the dissent, joined by Chief Justice Roger Taney and Justices John Catron and Nathan Clifford. It is a better opinion than its reputation, and a conservative who cares about the separation of powers should read it with attention.

Nelson's argument was straightforward. A war, in the legal sense that gives rise to belligerent rights such as blockade and the seizure of enemy property, is a state of affairs that exists only by an act of the sovereign. In the United States the sovereign power to initiate it belongs to Congress. The President has no power to declare war or to recognize its existence as a legal state. Without a congressional act, there was a rebellion, a matter for the criminal law and the militia, but not a war with rights of capture. Nelson would have held that the blockade was unlawful until Congress acted. He identified the date of the act of July 13, 1861, which authorized the President to proclaim an insurrection and to interdict commerce, as the first moment at which the captures could be justified. Captures before that date, including some at issue, were invalid.

That is a reasonable position, and it is built on a view of the Constitution that today's textualists would find familiar: the powers of war are Congress's, the President's authority is derivative, and the executive should not be able to create by his own say-so the legal conditions that enlarge his powers. The dissent's weakness is a practical one. A President who has to wait for Congress to meet, in the face of an armed rebellion, would have been a President unable to carry out his oath to preserve, protect and defend the Constitution. And it is hard to see how the nation could have waited.

The limits the case set

It would be a mistake to read the Prize Cases as a blank check. Four limits follow from the opinion, and each has been invoked since.

1. Defensive, not offensive. The majority's holding is tied to the notion of response. The President, it says, "does not initiate the war." The case supports presidential action in meeting an attack. It does not support presidential action in choosing a war. A President who wants to start a war with a foreign power needs Congress.
2. Ratification mattered. The Court noted that Congress had approved the President's acts. The better reading is that the Prize Cases show the working relationship the Founders intended: the executive acts in the emergency, the legislature reviews and decides. A President who acts and is not ratified is in a much weaker position, and a President who acts against Congress's expressed will is in the third category of the framework discussed in Youngstown Sheet and Tube Is the Case That Tells a President No in Wartime.
3. The nature of the enemy. The case concerned an insurrection of such proportions that it amounted to a civil war, with organized governments, armies, and territory. It does not give a President the power to treat any disturbance as a war, and it does not turn a minor use of force into a general power.
4. Property and liberty remain protected. The Prize Cases dealt with the property of enemies. They do not hold that a President may disregard the rights of loyal citizens. The same Court, in Ex parte Milligan in 1866, after the war was over, held that military tribunals could not try civilians where the civil courts were open.

How it was received, and the argument today

The reaction to the decision depended on one's view of the war. Opponents of Lincoln saw it as a surrender of the Constitution to necessity; supporters saw it as the Court's recognition of facts. Notice how closely the vote tracked the Court's membership. The five-justice majority included three of Lincoln's own appointees, Noah Swayne, Samuel Miller and David Davis, who had joined the Court after the war began. A cynic might say that a Court that is asked whether the President acted lawfully, and that has been filled in large part by the President, is an unreliable referee. The cynic would have a point, and the fuller picture of a wartime President's powers is in Commander in Chief Means Less Than Presidents Claim and More Than Critics Say. But the majority's reasoning stands on its own terms, and the dissent's argument, though respectable, would have left the Union legally helpless in the face of an armed rebellion.

Today the case is cited whenever a President acts in the field of war without express authority. The standard conservative reading, which seems to me correct, is this: the Prize Cases justify a President in repelling attacks and treating an armed rebellion as the war it is. They do not justify what has sometimes been claimed on their behalf, which is a general power to use military force abroad at the President's discretion. For that question, the key text is the War Powers Resolution of 1973, which Congress passed over President Nixon's veto, and the lesson of Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem, which shows how an authorization written for one emergency can expand beyond its terms.

The Founders' view is easy to state. In Federalist No. 69, Hamilton explained that the President's power as Commander in Chief would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy, while that of the British king extended to the declaring of war and to the raising and regulating of fleets and armies, all of which, by the Constitution, belonged to the legislature. That passage can be read as a statement of limits and as a statement of the President's role in the field. The Prize Cases are an attempt to live inside it.

The strongest objection, answered

The best objection to the majority's view is that it makes the President the judge in his own case. If the President decides whether an insurrection is a war, and if that decision justifies the blockade, the seizure of property, and the use of the army, then the limit on his power is whatever he says it is.

The answer comes in three points. First, the decision was reviewed by the Court itself, which considered it carefully and did not simply defer. Second, Congress did not stand aside; it ratified the acts, and it could have refused. Third, the nature of the facts constrained the decision: the Confederacy had armies, a government, and a long coastline, and the President did not have to invent a war. It existed. A President facing a more ambiguous situation, with less evidence and less public clarity, would be in a far weaker position, and the Prize Cases give him no comfort.

The case in brief

1. After the attack on Fort Sumter in April 1861, Lincoln proclaimed the militia call-up on April 15 and a blockade of Southern ports on April 19, and governed the war alone until Congress met on July 4.
2. In the Prize Cases, decided March 10, 1863, the Supreme Court held 5 to 4, through Justice Grier, that the President may resist force with force without waiting for Congress, and may decide that an insurrection has become a war.
3. Justice Nelson's dissent argued that only Congress can create the legal state of war and that captures before the act of July 13, 1861 were therefore invalid.
4. Congress ratified Lincoln's acts in August 1861, and the case sets limits: it covers defensive action in a real civil war, not offensive wars of choice.
5. The proper reading today is that a President may meet an attack, but a war of choice belongs to Congress under Article I, section 8.

What you can do: look up the last time your senators voted on a use-of-force authorization, and write a short note asking whether they believe a President may start a war without a vote.