Lincoln's Code

by John Fabian Witt

  The problem is that these critiques fundamentally misunderstood the project on which Lincoln and Seward embarked in 1861. As the Court grasped in its Prize Cases opinion of 1863, Lincoln and Seward had adopted a mixed theory of the legal status of the Civil War. They had not invoked the laws of war at sea for the purposes of governing the relationship between the Union and the so-called Confederate States of America—at least not at first. Instead, they had invoked the laws at war for the far more limited project of managing the United States’ relationship with neutral foreign powers, most importantly Great Britain. Lincoln had said just this in the initial draft of his first message to Congress in July 1861 when he wrote that it “scarcely needs to be considered” whether the blockade was “technically a blockade” or not, so long as foreign neutral nations agreed that “as between them and us, the strict law of blockade shall apply.” For the purposes of regulating the relationship with Great Britain, the only important practical consideration was that British statesmen concur with the American interpretations of the laws of war at sea. But this hardly made the international laws of war a hypocritical cloak for underlying Union interests. By adopting the international laws of war at sea, Lincoln and Seward aimed simply to opt into a whole array of ready-made answers to questions arising between the United States and foreign neutrals.

  Dozens of such questions appeared during the course of the conflict, and the laws of war supplied a host of useful answers. At various times in the war, the laws of war at sea facilitated the exit of foreign merchants who found themselves anchored in southern ports upon the declaration of the blockade. They governed the status of foreign nationals found aboard blockade-running vessels, ensuring that they were treated as neutral foreign nationals rather than prisoners of war or criminals. Law of war rules resolved thorny questions such as the proper disposition of a captured vessel whose crew had subsequently seized the vessel back from its U.S. Navy prize crew. The same laws of war provided standards to govern the compensation of foreign nationals for injuries they received in the war effort (something the Lincoln administration did repeatedly) and for denying such compensation when appropriate. In each of these controversies, and in myriad others, the law of war helped guide the U.S. and neutral powers down a path toward mutually acceptable resolutions to potentially explosive difficulties. That the United States had reversed its earlier positions on the doctrine of the continuous voyage was no matter, because the Lincoln administration had not committed itself (and never would commit itself) to treating the South as a belligerent entity entitled to all the rights and privileges of warfare. The administration had adopted the laws of war at sea for the much more limited purpose of smoothing its relations with Britain and France.

  To be sure, Seward was playing a dangerous game. The usefulness of the law stemmed in no small part from the legitimacy it derived by seeming fixed and durable. If the United States’ careful tailoring of the rules between it and Great Britain came to seem too much like playing fast and loose, the law’s capacity to achieve practical ends such as coordinating conduct in times of crisis might be diminished.

  It was a dicey strategy, and Secretary of the Navy Welles (among others) never quite grasped what Lincoln and Seward were up to. Until his death more than a decade after the end of the war, Welles would continue to criticize what he saw as Seward’s blunders: errors of principle to which he thought Lincoln had all too readily consented. But Lincoln and Seward were engaged in something other than a careless abandonment of American principles. What distinguished Lincoln and Seward from Welles was that neither the president nor the secretary of state believed that the rules of war at sea were principles worth fighting for in and of themselves. For them, the rules were means, not ends.

  Dog Eat Dog

  IN THE FALL of 1861, the laws of war meant everything in the world to a thirty-eight-year-old South Carolina man named John P. Calvo.

  On July 19, 1861, Calvo had sailed out of Charleston Harbor aboard the Dixie, a modest three-gun schooner. Calvo had a wife, Mary, and two children aged fourteen and twelve. He was a printer by trade, the publisher of the Spartanburg Express in the state’s hilly upcountry. But in the summer of 1861, Calvo had embarked on a new enterprise. Along with thirty-four other men he had joined the crew of a Confederate privateer, a vessel commissioned by Jefferson Davis to capture Union vessels and their cargoes.

  As Calvo and the Dixie slipped past the Union blockade and onto the high seas, they joined dozens of other crews taking part in what had become a craze in port cities across the South. For weeks the promise of huge profits from privateering had sent southern ports like Charleston and New Orleans into a frenzy as ship owners sought to refit their vessels and organize privateering companies. New Orleans observers enthusiastically predicted that nearly 1,000 private vessels would soon enlist in the cause.

  The Dixie’s early days at sea seemed to vindicate the hopes of its investors and crew alike. After four days, the crew overhauled and captured the bark Glen of Portland, Maine, and sent it with its cargo of almost 400 tons of anthracite coal to Moorehead City, North Carolina, for adjudication. The Dixie’s owners and crew expected to net over $10,000 after the auction of their prize and its cargo of coal. Two days later the Dixie captured another vessel, the Mary Alice, bringing sugar from the West Indies to New York. The Dixie’s captain, Thomas Moore, assigned Calvo to the prize crew with orders to bring the Mary Alice into port for adjudication.

  But Calvo and the skeletal prize crew of four other seamen from the Dixie never made it back into port. On August 3, at around 11 a.m., lookouts aboard the U.S. frigate Wabash spotted the Mary Alice off Wilmington, North Carolina. The Wabash gave chase, eventually capturing the Mary Alice and its crew of five from the Dixie. Captain Samuel Mercer of the Union Navy promptly sent the Confederate prize crew to New York, not as prisoners of war but as pirates. By the end of August, Calvo found himself imprisoned at Fort Hamilton in what is now Bay Ridge, Brooklyn. A month later he was transferred to the bowels of New York City’s infamous prison, the Tombs, to await prosecution as a pirate. And a month after that he wrote a letter to Abraham Lincoln.

  Calvo was not entirely honest with Lincoln. The canny newspaperman from South Carolina described himself as “a poor man,” one who had not had the “chance to butt his head against a College wall.” Calvo wrote disingenuously that it might be pointless for an uneducated man such as himself “to bandy words with you and others at the head of affairs.” But if he hid his familiarity with language, his message was clear: he and his fellows were prisoners of war, not pirates. “You can no more make us out Pirates than you can the Army Prisoners of the Confederate States.” His status was the same as that of men captured in “the Federal Navy and Federal Army,” he noted, and indeed the same as “the Privateersmen” of the United States “when she was in her infancy and rebelled against England.” But whether or not Lincoln would concede the point as a matter of principle, Calvo made a further and more disturbing observation. The character of the conflict now washing over the shores of the United Sates, Calvo insisted, turned on Lincoln’s willingness to offer Calvo and his fellow privateers prisoner of war protections. If the Union refused to recognize privateers as soldiers, Calvo warned, the war would quickly become a “dog eat dog” fight. Calvo seemed for the moment to believe his description of himself as unlettered: “Steal my dog,” he warned, and “I will steal your cat.” However awkwardly he put it, Calvo had identified the logic of reciprocity in the laws of war. If the privateers of the South were “considered and treated as Pirates,” then “those belonging to the Army and Navy” of the North would doubtless be “considered and treated the same.”

  LINCOLN’S APRIL 19 blockade order had promised to treat southern privateers not as legitimate combatants but as stateless pirates.

  But southerners instantly objected that if Lincoln had invoked the laws of war by imposing a blockade, he could hardly reject the application of those same laws to Confederate privateers. In So
uth Carolina, journalists reported “a good deal of joking”—and even derision—about the report that “Old Abe” had ordered Union cruisers “to treat the crews of Confederate privateers as ‘pirates.’” Confederate attorney general Judah Benjamin warned grimly that the Confederacy had “an easy remedy for that.” For any man whom the United States dared to execute, Benjamin threatened, the Confederacy would “hang two of their people.”

  The Union indicted Confederate privateers instead of treating them as prisoners of war; here, the Union sinks a privateer called the Petrel outside Charleston Harbor in July 1861.

  Once the Union began to pick up privateers and arrest them for piracy, the problem became more serious. Southern newspapers like the Charleston Mercury excoriated the “insane and blood-thirsty spirit ruling the Government of the North.” “If the hair of the head of a single man of this crew is injured,” wrote the Mercury’s editors, “South Carolina will demand that the outrage be atoned for—an eye for an eye—a tooth for a tooth—a life for a life.”

  Jefferson Davis himself responded to Lincoln on July 6 in a letter delivered personally to the president by Winfield Scott, now in his final days as the Army’s general-in-chief. The Confederate president sounded the same note struck by George Washington writing to the British general Thomas Gage outside Boston in 1775. “A just regard to humanity and to the honor of this government,” Davis told Lincoln, required that the Confederacy “deal out to the prisoners held by it the same treatment” given by the Union to the Confederate privateers. “Retaliation,” Davis warned, would be extended as far as necessary to force the United States to abandon its treatment of privateers as pirates, a treatment that Davis insisted was “unknown to the warfare of civilized man, and so barbarous as to disgrace the nation which shall be guilty of inaugurating it.”

  The problem of southern privateers caused Secretary of State Seward to revisit the country’s embarrassing Declaration of Paris episode. In 1856, Great Britain had deftly outmaneuvered the United States when it arranged a multilateral treaty that adopted American neutral rights principles while prohibiting the use of privateers. Unwilling to abandon its longstanding reliance on privateers, the U.S. had rejected the treaty as a ruse by more powerful European states. Five years later, now occupying Britain’s customary place as the stronger sea power in an armed conflict, the United States switched its position. Seward saw an opportunity to strike at the Confederate privateers by signing on to the Declaration’s prohibition on privateering. The secretary of state authorized Charles Francis Adams in London to accept belatedly the British invitation of 1856 to join the Declaration. If Britain were to refuse, Seward added, it could “only be because she is willing to become the patron of privateering when aimed at our devastation.”

  Seward’s gambit failed, however, and it failed because invoking the laws of war had consequences. The United States’ attempt to characterize the South’s privateers as criminals and pirates followed fast on its description of the South as a legitimate belligerent for purposes of the blockade. The contradiction was too much for many to swallow. William Howard Russell, correspondent for The Times in London, scoffed that “[t]he inconsistencies of the Northern people multiply ad infinitum.” It seemed to Russell a “farce” to try the privateers as pirates for acting on “the authority of a pretended letter of marque from one Jefferson Davis.” “One Jeff Davis,” Russell quipped, “is certainly quite enough for them at present.”

  British statesmen saw the situation in much the same way. When Seward and Adams asked for admission to the Declaration of Paris, Lord Lyons agreed to allow it but only as applied to future conflicts, not in the war that had already broken out with the South. Seward answered with the administration’s standard line on the privateers. The conflict with the South, he replied, was not a war but an insurrection, and as such the Declaration would apply to bar southern privateers even though the insurrection was already underway. To this, Lord Lyons had a devastating reply. “Very well,” he told Seward. “If they are not independent then the President’s proclamation of blockade is not binding. A blockade, according to the definition of the convention, applies only to two nations at war.” Invoking international law’s powers in April to erect a blockade had made denying its protections in May far more difficult. Did the United States plan to treat Confederate soldiers as criminals, too? For it was hard to see why there ought to be a difference in the treatment of the South’s privateers and its soldiers on land. Britain, explained the British foreign secretary Lord Russell, would try to keep the conflict at sea and on land “within the rules of modern civilized warfare.”

  SEWARD’S DECLARATION OF PARIS ploy may have failed, but the piracy prosecutions proceeded nonetheless. In light of the British pressure and Jefferson Davis’s retaliation threats, a stark question arose. Did Lincoln have the courage to hang Calvo and the other alleged pirates?

  At first it seemed he did. On July 16, a federal grand jury in New York indicted as pirates twelve crew members from the Charleston privateer Savannah. In August, a grand jury in Philadelphia did the same for five men from the privateer Jefferson Davis.

  The trials that ensued in October were national spectacles. The nation’s most prominent lawyers argued before packed courtrooms. National political figures sat in the galleries. Supreme Court Justice Benjamin Grier presided in Philadelphia, where the first piracy trial started on October 22. After just three days of argument in the courtroom, the jury took a half hour to return a verdict of guilty against William Smith, the captain of the prize crew from the Jefferson Davis. The court sentenced him to death by hanging. In the subsequent days another Philadelphia jury returned guilty verdicts against three more men from the same crew.

  The New York trial of the officers and crew of the Savannah began a day after the commencement of the Philadelphia trial. It had all the same pomp and circumstance. Supreme Court Justice Samuel Nelson presided. But the New York trial produced a very different outcome.

  For the defense, the renowned criminal defense lawyer James T. Brady teamed up with the dean of the New York bar, Daniel Lord, and a rising young lawyer named Algernon Sullivan. They squared off against the government’s favorite hired gun, William Evarts, whose mentor Lord was now his adversary in one of the biggest cases of their careers.

  From the start, the case proved to be a bitter fight. Even before the trial began, Secretary of State Seward threw the defense lawyer Algernon Sullivan into prison for seditious contact with the enemy. (Sullivan had corresponded with Confederate officials in Virginia on behalf of his clients.) Daniel Lord represented John Harleston (the first mate of the Savannah and the son of one of Lord’s Yale College classmates) and insisted that the government’s position was hypocrisy through and through. Right down the hall in the very same courthouse, Lord spluttered, federal judge Samuel Betts was condemning Confederate vessels captured by a Union blockade force that presupposed a state of war between North and South. But if the Confederacy was capable of carrying on a war, then it ought to be able to commission privateers, too. Almost beside himself, Lord fumed about a government that claimed to treat southerners “as enemies, for the purpose of confiscation” but “as traitors and pirates, for the purpose of execution.” It was “a glaring inconsistency,” Lord exclaimed. Sullivan, released on an oath of loyalty from the dungeons of Fort Lafayette in New York Harbor only days before, pushed his luck by exhorting the jury to remember that their fathers had been revolutionaries, too, and that they had “judged for themselves what Government they would have.”

  For all the controversy in the Savannah case, there was little disagreement about the essential facts. The dispute was over how to characterize them. Was the Civil War a conflict in which commissioned private vessels were legitimate privateers like the American privateers of the War of 1812? Or was it a criminal conspiracy in which the so-called privateers were really mere pirates like the members of so many antebellum filibustering expeditions in South America? For six days, the lawyers deb
ated the case. And in the end, the defense arguments won out. When the jury came back deadlocked, Justice Nelson sent them back to the jury room to try again. But when the jury again failed to reach a decision, the government’s case collapsed. For all his persuasive capacity, William Evarts had simply been unable to persuade the jury that the armed conflict with the South—then finishing its sixth month—was anything other than a war.

  Prosecutors planned to retry the Savannah crew on the same piracy charges, but the hung jury took the wind out of the prosecution’s sails. For men like Calvo waiting in the Tombs, the government’s inability to get a conviction in the Savannah case meant that their day in court would never come. In Philadelphia, plans to execute Smith and his crew were quietly put on hold. And late in the fall, Lincoln and Seward abandoned the piracy prosecutions altogether. By February 1862, the privateers imprisoned in New York were transferred from the Tombs to Fort Lafayette and redesignated as prisoners of war. At the end of May, Calvo and the privateers from the Savannah and two other Confederate privateering vessels were discharged as part of a prisoner exchange between North and South.

  ONE THING THAT had happened between the captures of the privateers in June and their trials in the fall was the first great land battle of the war. At Bull Run, on July 21, 1861, almost 500 Union soldiers lost their lives, as did almost 400 from the Confederate Army. Altogether, another 2,700 were wounded.