President Lincoln, Courtesy of the Library of Congress
In Lincoln’s Constitution (Chicago, 2003), Daniel Farber addresses the 1863 Prize Cases and argues, “Lincoln acted appropriately” in regard to the Supreme Courts question of the constitutionality of Lincolns’ blockade order (142).
The Prize Cases (1863) questioned whether President Abraham Lincoln acted within his presidential powers, defined by Article II of the Constitution, when he ordered the blockade of Southern ports, thus authorizing the seizer of ‘enemy’ ships. April 19, 1861, Lincoln proclaimed a blockade of all deep Southern ports and soon after extended the blockade to seceding upper Southern states. Lincoln issued the blockade on the basis of “unlawful proceedings” (succession from the Union) as well as actions of warfare “under authorities of the States of Virginia and North Carolina.” Farber notes the seizers of the Army Warwick, the British ship Hiawatha and the Mexican Brilliante under the blockade issued by Lincoln (139). Republished in 2009 by BiblioLife, Prize Cases Decided in the United States Supreme Court, 1789-1918 (originally published in 1923), by James Brown Scott, examines the specific cases of each ship, including the Crenshaw, not mentioned by Farber. In a close vote of five-to-four, Taney’s court ruled the president possessed the power to use military action without Congressional authorization in the case of national emergencies. After the firing on Fort Sumter, April 12th 1961, in reality a state of war existed, obligating Lincoln “to meet it [the rebellion] in the shape it presented itself, without waiting for Congress to baptize it with a name”(140).
Farber focuses heavily on Lincolns ability to recognize the existing state of war and his responsibility to “meet the adversary upon land and water with all force of the government” (141). One problem with Farbers description of the Prize Cases lies in his emphasis on the opinion of the court and his neglect to explore the courts minority vote.
Farber cites David P. Curries 1985, The Constitution in the Supreme Court: The First Hundred Years. In a chapter entitled, “The Prize Cases” Currie critiques the majority opinion of the court, finding the opinion uninspiring. In a 1986 review published in The Journal of American History, scholar Francis N. Stiets, describes the book as highly general, but notes the quality of Currie’s analysis and fastidious footnotes. Steits’ review can be found on JSTOR and Curries book can be found in the Dickinson College library.
The opinion of the court, written by Justice Robert Cooper Greir (Dickinson College, Class of 1814), can be found in many places on the Internet. One of the most highly sighted being the Cornell University Law School’s Legal Information Institute. The site includes the Supreme Courts case syllabus, Greir’s opinion, as well as that of the dissenting. The court’s dissent, written by Justice Samuel Nelson and supported by Chief Justice Taney, concludes that “no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861”(67 U.S. 635, Prize Cases).
Chief Justice Taney, Courtesy of the Library of Congress
Chief Justice Roger Brooke Taney (Dickinson College, Class of 1795) clashed with Lincoln in regards to the presidents’ constitutional war powers. In his recent publication, NYU law professor, James F. Simon evaluates Lincoln and Taney’s dynamic constitutional disputes. Simons Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (2007) can be found in the Dickinson College Library. While Simons provides adequate information on Taney’s views of presidential wartime powers, his lack of conventional footnote makes his research difficult to follow. The work is generally well received and described by many scholars as being written for the general public.
Daniel Farber describes the precedent set by the Prize Cases in determining future cases questioning presidential wartime powers, citing The War Powers Resolution of 1973 as an example. Since the 2001 terrorists’ attacks there have been many instances where the use of presidential power has been subject to criticism. A review of The War Time Resolution, by the Congressional Research Service, examines the use of presidential war powers between 1973 and 2004. The CRS, like many contemporaries, consent with the majority argument made by Taneys court on the Prize Cases, agreeing with and trusting in the presidential authority to respond with force to national threats.