The Prize Cases, 2 Black (67 U.S.) 635; 17 L. Ed. 459 (1863)

The Prize Cases, 2 Black (67 U.S.) 635; 17 L. Ed. 459 (1863)

Facts—By proclamations of April 15, April 19, and April 27, 1861, President Lincoln established a blockade of southern ports. These cases were brought to recover damages suffered by ships carrying cargoes to the Confederate states during the blockade, which had been raided by public ships of the United States. The blockade was declared before Congress had a chance to assemble and take action on the matter.

Question—Did a state of war exist at the time this blockade was instituted that would justify it?


ReasonsJ. Grier (5–4). “Although a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history that the Court is bound to notice and to know. By the Constitution, Congress alone can declare a national or foreign war. It cannot declare war against a state or any number of states, by virtue of any clause in the Constitution. The Constitution confers on the president the whole executive power. He must take care that the laws be faithfully executed. He is commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into the service of the United States. He has no power to initiate or declare war, either against a foreign nation or a domestic state. But he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a state or of the United States.

“If a war be made by invasion by a foreign nation, the president is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or domestic states organized in rebellion, it is nonetheless a war, although the declaration of it be unilateral.

“The greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The president was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. Whether the president in fulfilling his duties, as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decision and acts of the po- litical department of the government to which this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation of blockade is, itself, official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”

J. Nelson and three colleagues, focusing on the congressional power to declare war, argued that the president could not impose a blockade without prior congressional action.

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  1. Gilda Dresdner

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