The Supreme Court Argument that Saved the Union: Richard Henry Dana, Jr., and the Prize Cases

Abstract

The Supreme Court Argument that Saved the Union: Richard Henry Dana, Jr., and the Prize Cases JEFFREY L. AMESTOY On January 1, 1863, Abraham Lincoln signed the Emancipation Proclamation, claiming constitutional authority to do so “as a fit and necessary war measure.” The epic struggle between North and South had been raging for nearly two years. There were over a million soldiers under arms. At Antietam there had been more than 20,000 casualties in the bloodiest single day of battle in American history.1 But was it, in point of law, a war? This astounding question—conceivable under such circumstances only in the U.S. constitutional system—was answered by the Supreme Court in the Prize Cases.2 It was very nearly answered in the negative. That it was not was due to the extraordinary argument ofa lawyer who, fortunately for the history of the United States, went to sea as a young man. Richard Henry Dana, Jr. is today remem­ bered as the author of Two Years Before the Mast, his classic account of a voyage around Cape Horn to the California coast. Published in 1840, the year the twenty-five-year-old Dana opened his law office, the book has never been out of print. Scholars of American literature have expressed regret that Dana “dissipated” his enormous literary talent in the practice of the law.3 But Dana always saw himself, first and foremost, as a lawyer. He had written Two Years Before the Mast, in part, to express his outrage at the unjust and unlawful treatment of seamen.4 Dana’s book brought the young lawyer a succession of clients who seldom had access to legal representation. He quickly built a rep­ utation as a zealous advocate for the common sailor. His office “[i]n those days, and indeed long afterwards, ... was apt to be crowded with unkempt, roughly dressed seamen, and it smelled on such occasions much like a fore­ castle.”5 Dana’s experience at sea shaped and informed his development as a lawyer. By the RICHARD HENRY DANA ll W 1 Richard Henry Dana was twenty-five in 1840 when he wrote Two Years Before the Mast, his first-hand account of a voyage around Cape Horn to California in a merchant vessel similar to the one pictured. This photo of Dana was taken two years later. outbreak of the Civil War, no lawyer in Amer­ ica was more well-versed in maritime law or more experienced in the intricacies of “prize law”—the arcane avenue ofjurisprudence that, in 1863, threatened to unravel Lincoln’s at­ tempt to preserve the Union. The Prize Cases arose from the capture of four vessels—the brig Amy Warwick, the bar­ que Hiawatha, and the schooners Brilliante and Crenshaw—in the early months of the Civil War. Each had been seized pursuant to a blockade of Southern ports proclaimed by President Lincoln in April 1861.6 The right to interdict, seize, and dispose of vessels and cargo belonging to those residing in “enemy’s territory” upon the implementation ofa lawful blockade was a recognized principle of inter­ national law. But the right was predicated on a war between sovereign nations. Lincoln did not accept the claim ofthe Confederacy that it was a sovereign government. He had an equal interest in ensuring that no other nation did either.7 12 JOURNAL OF SUPREME COURT HISTORY Lincoln’s first blockade proclamation characterized the Southern secessionists as a “combination of persons” engaged in “an insurrection against the government of the United States.”8 The difficulty posed by this description was that a government engaged in the suppression of an insurrection could “close” its domestic ports but could not, ac­ cording to accepted tenets ofinternational law, “blockade” them.9 Why, then, had Lincoln not chosen to close Southern ports—a decision clearly within his executive authority and con­ sistent with international law? The question had divided Lincoln’s “team of rivals.”10 Secretary of the Navy Gideon Welles, supported by Attorney General Ed­ ward Bates, argued strenuously against the blockade because its legal validity presup­ posed a conflict between two distinct nations. The issue of whether to close or blockade was...