1861 Abraham Lincoln - Lincoln's Blockade Proclamation

In 1861, President Lincoln took executive action create a blockade of Southern Seaports without declaring war against the Confederacy and without recognizing them as a foreign nation.   It was a calculated and gutsy move to side-step Congress, but one that was upheld by the Supreme Court as a legitimate Constitutional use of War Powers without recognizing the Confederacy as a belligerent foreign nation.   The blockade became known as General Winfield Scott's Anaconda Plan or as shown here in this cartoon, Scott's Great Snake.

On April 19, 1861, six days after the fall of Fort Sumter, President Abraham Lincoln issued a proclamation for the largest blockade ever attempted in world history.   Lincoln's blockade was to cover the ports of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas in order to stop the flow of weaponry and basic supplies from foreign nations to the Confederacy.  Just days later, Lincoln modified the blockade to include Virginia and North Carolina.   To undertake such a task, the U.S. navy would need to create an effective barrier to commerce along 3,500 miles of cast.  At the time, the Navy Department had only 42 vessels containing a total of 555 guns and only 7,600 sailors on hand.   With many of these vessels either scattered around the world, or in need of refitting for the task, U.S. Secretary of the Navy Gideon Welles began purchasing and chartering merchant ships and authorizing construction of new vessels.   By December of 1861, just 8 months later the Navy Department had 264 vessels commissioned. 

Despite Congressional support for the naval blockade led by a vocal minority of Radical Republicans, Lincoln did not ask Congress to declare war on the Confederacy but chose to use executive action to issue the blockade.  During Lincoln's first State of the Union delivered in December of 1861, he informed Congress that rather than enforcing Congressional action, he used his "best discretion" an "adhered to the blockade of the ports held by insurgents".  These words were very carefully chosen.  Lincoln referred to the Confederacy as "insurgents", not a belligerent nation.   Even though, the president began this section with "the war continues", he did not recognize the Confederacy as a foreign nation.  Lincoln described his actions and policies as "suppressing the insurrection".    The blockade was not on a foreign nation, but on insurgents who were using the ports to arm a rebellion against the United States.   This action and others such as Lincoln's militia proclamation and suspending the writ of habeas corpus were taken to "keep the integrity of the Union prominent".   Lincoln told Congress that with these policies, he chose executive action rather than Congressional legislation, not to circumvent Congress, but as a deliberate choice of legal course to avoid recognizing the Confederacy as a belligerent nation.  Lincoln defended his blockade against those who supposed he was overstepping his boundaries by reminding them, that his actions only adhered to what Congress had already supported, and that if they were to now several monthly later pursue further legislation, he would sign it.

"The war continues. In considering the policy to be adopted for suppressing the insurrection I have been anxious and careful that the inevitable conflict for this purpose shall not degenerate into a violent and remorseless revolutionary struggle. I have therefore in every case thought it proper to keep the integrity of the Union prominent as the primary object of the contest on our part, leaving all questions which are not of vital military importance to the more deliberate action of the Legislature.
 In the exercise of my best discretion I have adhered to the blockade of the ports held by the insurgents, instead of putting in force by proclamation the law of Congress enacted at the late session for closing those ports.
 So also, obeying the dictates of prudence, as well as the obligations of law, instead of transcending I have adhered to the act of Congress to confiscate property used for insurrectionary purposes. If a new law upon the same subject shall be proposed, its propriety will be duly considered. The Union must be preserved, and hence all indispensable means must be employed. We should not be in haste to determine that radical and extreme measures, which may reach the loyal as well as the disloyal, are indispensable."

To understand Lincoln's policies and his insistence that Executive action be pursued, we need to consider the logic that if Congress were to legislate these actions it would constitute an act of war against the Confederacy and implicitly acknowledge their rights as a foreign nation at war.  As a nation at war, the Confederacy under international law would be allowed to purchase arms, receive loans and receive support.  Many argued that an executive action would do the same, but Lord Richard Lyons, the British minister in Washington informed Secretary of State William H. Seward that Great Britain was under no obligations to honor an executive order because they considered it without merit.   In reality, Great Britain intended to violate the blockade because they needed southern cotton and international law would allow British vessels to act on their own despite the risk of being caught up in the blockade.   The Lincoln administration decided to accept the risk of British vessels violating the blockade over the risk of recognizing the Confederacy as a belligerent nation.  18 months later, the Supreme Court ruled to uphold Lincoln's blockade actions in what is known as the "The Prize Cases".   In the Prize Cases, owners of several vessels seized by the Union in the summer of 1861 argued that international law limited blockades only to wars between nations, and since Lincoln's claim was that the Confederacy was not a nation, but merely a group of insurgents, the blockade was in conflict with international law.  By a 5-4 majority decision, the Supreme court endorsed Lincoln's judgement that the secession of states began as an insurrection, not a war with a separate nation, and that the United States had the rights and powers of war against such an insurrection.  In other words, Lincoln's blockade through executive action was held up as a legitimate exercise of war powers under the constitution without recognizing the Confederacy as a separate nation. 

References

Presidency.ucsb.edu. (2019). First Annual Message | The American Presidency Project. [online] Available at: https://www.presidency.ucsb.edu/documents/first-annual-message-9 [Accessed 21 Feb. 2019].

American Battlefield Trust. (2019). Blockade!. [online] Available at: https://www.battlefields.org/learn/articles/blockade [Accessed 21 Feb. 2019].

Experience the 55 Months that Made America. (2019). The Lincoln Blockade Proclamation. [online] Available at: https://civilwarmonths.com/2016/04/20/the-lincoln-blockade-proclamation/ [Accessed 21 Feb. 2019].

Lawreview.vermontlaw.edu. (2019). [online] Available at: https://lawreview.vermontlaw.edu/wp-content/uploads/2014/01/03-Yoo.pdf [Accessed 21 Feb. 2019].