ON THE QUESTION of the laws of war, the new president of the United States was a blank slate. Unlike Sumner, Seward, and Scott, Abraham Lincoln had virtually no familiarity with war and even less experience with its laws. When the guns sounded in April 1861, Lincoln repeated the pattern that had been developing for a generation. The gathering armies of the South, he decided, were made up of criminals, not soldiers.
PART II
A Few Things Barbarous or Cruel
You dislike the emancipation proclamation; and, perhaps, would have it retracted. You say it is unconstitutional—I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there—has there ever been—any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.
—Abraham Lincoln to James C. Conkling,
August 26, 1863
Chapter 5
We Don’t Practise the Law of Nations
I’m a good enough lawyer in a Western law court, I suppose, but we don’t practise the law of nations up there . . . .
—Abraham Lincoln, April 1861
IT IS ONE of the most enduringly striking features of the United States’ greatest wartime president that he came into office with virtually no prior experience of war. Of the fifteen men who served in the office before Abraham Lincoln, only two possessed wartime records as thin as his, and their records in office did not inspire confidence. Martin Van Buren led the country’s bloody, ethically dubious, and indecisive campaign against the Seminoles in Florida in the late 1830s. Ten years later, James Polk leapt headlong into the Mexican War, a war that Lincoln himself bitterly opposed.
When compared to his Confederate counterpart, Jefferson Davis, Lincoln’s meager wartime record seemed even weaker. Davis was a West Point graduate, a six-year veteran of the Army officer corps, and a former secretary of war in the administration of Franklin Pierce. In the Mexican War, he had proven himself a brilliant battlefield tactician. Lincoln’s sole experience in armed conflict, by contrast, had occasioned more jokes than praise. In the short and sordid Black Hawk War of 1832, Lincoln had served as a captain of the Illinois militia. Historians have long speculated that Lincoln’s leadership stint in the militia propelled him into politics. But no one disputes that Lincoln’s actual role in the conflict was negligible. “I had a good many bloody struggles with the mosquitoes,” he later quipped, “and although I never fainted from the loss of blood, I can truly say I was often very hungry.”
Lincoln had no more experience with the laws of war than he did in the heat of combat. His own minister to Great Britain scoffed that the president “knew absolutely nothing” about foreign relations. His minister in Vienna worried that Lincoln did not even have the good sense to hide how little he knew. In the week before his inauguration, six weeks before the first shots of the Civil War, the president-to-be admitted to one European diplomat that he didn’t “know anything about diplomacy.” “I will be very apt,” he confessed, “to make blunders.” It was thus no small matter that one of the first problems Lincoln had to face after the firing on Fort Sumter on April 12, 1861, was a high-stakes and delicate decision about the laws of war.
A Strange Inconsistency
UP UNTIL THE middle of April, Lincoln had treated secessionists not as enemies but as criminals. “We must not be enemies,” he had told the South at his inauguration. In one sense, his words were conciliatory. But the words had a double meaning that was not lost on his listeners. For if violence broke out and the secessionists were not enemies in war, then they were criminals subject to punishment for treason. “Acts of violence within any State or States against the authority of the United States,” Lincoln had warned, were not acts of war but “insurrectionary or revolutionary” crimes.
This was no mere lawyer’s game. If the violence that broke out in the second week of April was a crime, then the humanitarian limits on war’s destructive powers had no application.
Many in the North took the logical next step. In Milwaukee, the Daily Press & News conceded that the laws of war required that nations “be hospitable to a foe,” but observed that they said nothing about how to treat a treasonous brother. The editors of the Buffalo Morning Express wrote that the secessionists were not “entitled to the considerations belonging to a common humanity.” In Missouri, the Unionist editors of the Columbia Daily concluded bluntly that if the limits of civilized war were inapplicable, then “no quarter should be shown to rebels.” The Elkhorn Independent of Wisconsin called for a “war of extermination to all traitors.” Elias B. Holmes, a former Whig member of Congress, urged Lincoln that all cities “refusing to lower the secession flag” should be “razed to the ground.” The editors of the New York Herald foresaw a conflict “vindictive, fierce, bloody, and merciless beyond parallel in ancient or modern history.” Horace Greeley’s New York Tribune predicted that “Jeff. Davis & Co. will be swinging from the battlements at Washington . . . by the 4th of July.”
In the early summer of 1861, it was not yet clear whether captured Confederates would be treated as prisoners of war or as criminals. Harper’s Weekly artist Alfred Waud sketched a prisoner being interviewed by four Union soldiers and (at far left) a member of the local police force.
In the weeks after Lincoln’s inauguration, however, a new problem called into doubt his treatment of secession as crime. A critical piece of the early Union strategy was to cut off the southern ports to foreign trade. The importation of weapons and supplies for the new Confederate Army would be vital to the southern capacity to fight a war. Cotton exports were the economic engine of the region. But the question of how to cut the South off from the world quickly caught the United States in a foreign policy predicament. The British and French economies relied heavily on southern cotton. When Secretary of State Seward floated the idea of closing southern ports at a dinner for European foreign ministers in late March, the group objected vociferously. The British minister, Lord Lyons, warned Seward ominously that “if the U.S. determined to stop by force so important a commerce as that of Great Britain with the cotton-growing states,” he “could not answer for what might happen.” Closing the ports, Lyons told Seward, would force the European powers to choose between “interruption of their Commerce” and “recognizing the Southern Confederation.” Lyons left little doubt which choice he would prefer.
The greatest difficulty for the British, however, was not merely that closing the ports would stop the cotton trade. A bumper crop in 1860 had left British cotton markets with an excess of supply, and British cotton interests could survive virtually unscathed for another season, perhaps more, without imports from the American South. The bigger problem was that a port closure would subject vessels and crews of the British merchant fleet to the United States’ criminal laws. Lord Lyons feared that British seamen caught trying to evade the port closure would provide a cause célèbre for British cotton interests, who in turn would be in a position to exert great pressure on the British government to recognize the South and reopen the cotton trade. Writing to the British foreign secretary Lord John Russell, Lyons observed that a port closure would make British vessels and their crews subject to American criminal prosecution, a sanction that Lyons thought would impose “vexations beyond bearing.” “All kinds of new and doubtful questions will be raised,” Lyons worried.
THERE WAS ANOTHER path open to the United States, however. What would happen, Seward wondered, if the United States declared a blockade against the southern states?
At first, the d
istinction between blockade and port closure seemed mere wordplay, the kind of distinction only a lawyer could love. But as Seward studied the administration’s predicament, he began to understand that a blockade would be crucially different from closing the ports. Blockades were creatures of international law, not domestic U.S. law. A blockade would therefore operate according to rules that were shared on both sides of the Atlantic—rules that the British themselves had helped to forge in the wars against Napoleon a half century before. The international law of blockade would not be subject to change without notice by U.S. officials, which meant that British merchants would be able to guide their actions by reference to its known rules. Disputes would be determined by prize courts operating pursuant to the international law of prize, not by American criminal law and juries of impassioned American citizens. When Seward consulted with Lyons about the idea, the British minister conceded that “a regular blockade would be less objectionable” because the “rules of a blockade are to a great extent determined and known.”
Most of all, turning to the blockade appealed to Britain’s long-standing interests. It was Britain and its massive navy that had insisted on defending the international law power of blockades in the Napoleonic Wars. Now, fifty years later, Britain still leaned heavily on its navy as the guarantor of its far-flung empire. The blockade form thus appealed to Britain’s aim of maintaining a broad power of blockades for use in any future war against the powers on the Continent. And so, at Seward’s urging, the president issued a proclamation “to set on foot a blockade of the ports” along the coast from South Carolina to Texas. Eight days later, Lincoln extended the blockade order to the ports of North Carolina and Virginia.
The European ministers in Washington barely registered an objection. Partly this was because Lyons and other foreign ministers doubted that the tiny U.S. Navy could mount a blockade any time soon. Under international law, a blockade was only lawful if it involved a naval force sufficient to make it effective. But as Lincoln understood all too well, the size of the U.S. Navy meant that a good deal of cotton would get through for the foreseeable future. “Our ships,” Lyons winked, “could at all events resort to any Ports before which the U.S. did not establish a regular effective blockade.”
But American observers, especially many of Lincoln’s closest allies, were furious. A majority of Lincoln’s own cabinet feared that the president’s inexperience had led him into a foolish and potentially disastrous blunder. “A nation cannot blockade its own port,” spluttered a furious Attorney General Edward Bates. Postmaster General Montgomery Blair opposed a blockade in favor of “the legal and straightforward course” of closing the ports or setting up custom collection on ships stationed off the southern coast. Secretary of the Navy Gideon Welles would have to implement the blockade, but Welles was virtually apoplectic. The cabinet, he recorded in his diary, had “preferred an embargo or suspension of intercourse.” The conflict with the South, he argued, was “a civil war, and not a foreign war.” To blockade rebel territory would be to “raise the insurgents to the level of belligerents” and concede that “the Confederate organization” was “a quasi government” entitled to a position among nations. “If the interdiction is to be by Blockade,” Welles said pointedly, then it followed that “the Confederate States must be considered and treated as a distinct nationality—their collectors, revenue officers, clearance, registers &c” would have to be “recognized as legitimate.”
Lincoln seemed to have given away the game before it had even begun. Judah Benjamin, the Confederacy’s attorney general, snickered that “the blockade of the Southern ports is illegal so long as the President claims them to be ports of the United States.” Lincoln’s own proclamation seemed to concede the independent status of the South by justifying the blockade not merely under the law of the nation (singular), but under “the law of Nations” (plural). Indeed, as many saw it, the blockade proclamation made no sense at all. Lincoln coupled his blockade with a declaration that private vessels commissioned into service by the so-called Confederacy would be treated as pirates (and thus subject to execution as criminals) rather than as privateers (and thus eligible for prisoner of war status). As Welles remarked acidly, this was a “strange inconsistency” in the proclamation. Lincoln had contradicted himself, treating the Confederacy as an independent country in one breath and as a criminal conspiracy in the next. An exasperated Welles blamed Lincoln’s ignorance, the baleful influence of Seward, and an embarrassing submissiveness toward the European powers.
WHAT WELLES DID NOT grasp was that with a little push from Great Britain and France, Lincoln and Seward had stumbled into a distinctive way of thinking about the laws of war, one that would serve the nation well over the next four years and more. The blockade promised (in Seward’s words) “to avoid complications” that both Lincoln and Seward believed “would be likely to involve us in a foreign war,” and as Lincoln told his cabinet, the nation could not afford “to have two wars on our hands at once.”
That the proclamation was incoherent as a matter of international law was less important to Lincoln than the fact that it helped smooth relations with the European neutral powers. Soon after the blockade proclamation, Lincoln ran into Congressman Thaddeus Stevens, a staunch abolitionist and chair of the powerful Ways and Means Committee in the House of Representatives. Stevens complained that Lincoln’s proclamation had committed the United States “to conduct the war, not as if we were suppressing a revolt in our own States, but in accordance with the law of nations.” The president, Stevens intimated, had misunderstood the principle at stake and had gotten the legal categories backwards. Lincoln replied with characteristically self-deprecating wit: “I see the point now, but I don’t know anything about the law of nations, and I thought it was all right.” With a bit of brilliant homespun banter, the president dismissed the self-righteous Stevens. “I’m a good enough lawyer in a Western law court, I suppose,” Lincoln said, “but we don’t practise the law of nations up there, and I supposed Seward knew all about it, and I left it to him. But it’s done now and can’t be helped, so we must get along as well as we can.”
Lincoln knew far more than he let on. With a little help from the British, the president had developed a new appreciation for the laws of war, one that was grounded not in the abstract principles of Stevens and Welles but in a practical idea about what the laws of war could accomplish for the Union war effort.
THE UNION BLOCKADING squadron’s first capture came on May 12 off Charleston, South Carolina, when the steam frigate USS Niagara fired a shell across the bow of an inbound vessel called the General Parkhill. Captain William McKean of the Niagara seized the blockade-runner from its South Carolina owners and sent it to Philadelphia to be condemned along with its cargo by a federal prize court. The next week, off the coast of Virginia, Flag Officer S. H. Stringham of the Atlantic Blockading Squadron captured a dozen Virginia-owned vessels carrying cargoes of tobacco.
British vessels were soon caught up in the Union dragnet. On May 20, Stringham’s 44-gun wooden steam frigate, the USS Minnesota, captured the English bark Hiawatha and sent it to New York for judicial investigation. The next day, Stringham captured another English vessel, the schooner Tropic Wind, off Hampton Roads and sent it to the federal district court in Washington, D.C. And these were just the first. Over the next four years, the Union blockade intercepted more than 1,200 vessels, most of them owned (at least nominally) by British merchants. When all was said and done, the federal district courts condemned more than 600 vessels as prizes of their U.S. Navy captors.
SIXTY-YEAR-OLD Secretary of State William Henry Seward was the unlikely architect of Lincoln’s legal strategy for the blockade. Seward was his generation’s consummate politician. A small, rail-thin, and slightly stooped man of incongruously prodigious appetites and a taste for Cuban cigars, Seward had served as governor of New York from 1839 to 1843 and then as a U.S. senator from New York from 1849 until his appointment as secretary of state. As a senator, S
eward had become known for his outspoken opposition to slavery. But as a politician, his enemies viewed him as the corrupt puppet of the newspaper publisher Thurlow Weed, the powerful backstage manager of New York’s Whig Party machine. Seward, it was said, would compromise on principle for the sake of Weed’s partisan ends. So complete was Seward’s association with Weed that even Seward joked about what others no doubt thought true: “Seward is Weed and Weed is Seward,” he quipped. Together, the two men made a formidable political team. Thanks to Weed’s influence behind the scenes and Seward’s political charisma, Seward had been the favorite to win the 1860 Republican Party nomination for president until the nomination went to the relatively unknown Abraham Lincoln instead.
Seward was a lawyer, but like Lincoln his skills did not include mastery of the fine distinctions of the laws of maritime warfare or the law of nations. What Seward had going for him was an uncanny knack for appealing to judges and juries and getting them to see his client’s side of the argument. Many worried that Seward’s skills in the law would be unlikely to serve him as well in statecraft as they had at the New York bar and in the back rooms of New York politics. Contemporaries observed that Seward had “never given any particular attention” to international law. Charles Francis Adams, Jr., who knew Seward in the 1860s, later wrote that he “did not possess what is known as a legal mind, much less one of a judicial cast.” Montgomery Blair stated plainly that Seward knew “less of public law than any man who ever held a seat in the Cabinet.” Charles Sumner, chairman of the Senate Committee on Foreign Relations, believed that Seward knew nothing of international law. Attorney General Edward Bates announced that Seward was “no lawyer and no statesman.”
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