War Is Hell, But Even Hell Has Rules: Slavery & Emancipation Per the Lieber Code
This post is part of a series.
Slavery and emancipation were politically fraught topics that Frances Lieber addressed in depth within his Code.[1] As highly charged political issues, Lieber arguably should have tred lightly, limiting his discussion to how the U.S. military should handle enslaved persons, especially fugitives, without commenting on the political status of the enslaved themselves. Granted, the Lieber Code was issued with Abraham Lincoln’s approval. However, as shown below, Lieber’s discussion of slavery and emancipation revealed either his ignorance of U.S. law, or determination to ignore such. Indeed, in that light, one must wonder how closely Lincoln reviewed the Code prior to approving such.
Article 32.
A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another.
The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change.
Comment: This Article endorsed the use of martial law by local commanders to emancipate the enslaved. U.S. Generals John C. Fremont (in August 1861) and David Hunter (in May 1862) each had in fact relied upon marital law to free the enslaved within the areas of their military commands. While each action had been revoked by Lincoln, who insisted upon retaining in his own hands the issue of emancipation,[2] Lieber asserted the radical proposition that Fremont and Hunter had indeed possessed the authority of their actions (subject only to the decision of their political master).
Article 37.
The United States acknowledge and protect, in hostile countries occupied by them … strictly private property…
Article 38.
Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States…
Comment: Here appears another of the many contradictions found within the Lieber Code. Of course, enslaved persons were considered private property under long-established American Constitutional and statutory law. Thus, despite Article 32’s provision that military commanders could utilize martial law as a tool of emancipation, under these two subsequent Articles at least, the U.S. Army generally was bound to “acknowledge and protect” citizen rights in their enslaved property.
Article 41.
All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field.
Article 42.
Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that “so far as the law of nature is concerned, all men are equal.” Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.
Article 43.
Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service.
Comment: These provisions raise a host of issues.[3]
With these Articles 41 to 43, Professor Lieber gave full rein to his international academic mindset. Lieber combined his pronouncement that martial law in the field displaced local law with a lecture on ancient history extending back to the Romans (whose legions apparently were filled with early abolitionists). But by relying on the European legacy of slaves becoming free by escaping “into another country,” Lieber contradicted Lincoln’s position that the seceded states had never left the Union, and the Confederacy was not a separate country.[4]
Moreover, Lieber’s use of European legal theory to free the enslaved ignored both the Constitution and the existing landscape of U.S. statutory law. The Constitution protected slavery throughout the land (calling into serious question the legality of the Emancipation Proclamation itself). Congress’ Second Confiscation Act, approved in July of 1862, freed only slaves of disloyal owners, and then only after the owner’s judicial conviction for treason.[5] The Fugitive Slave Act of 1850 still was in force,[6] with even earlier Supreme Court precedent upholding the right, guaranteed by the Constitution, of a slave owner to recover a fugitive who escaped to any free jurisdiction.[7]
Even the Emancipation Proclamation itself explicitly denied freedom to those enslaved persons who were under U.S. military protection if they resided in states, or parts of states, not considered in rebellion as of the January 1, 1863 date of issuance of the Proclamation.[8] Indeed, and ironically, those three enslaved persons who thought they had made it to freedom by reaching Maj. Gen. Benjamin Butler at Fortress Monroe in Virginia (the original so-called “contrabands”) were not freed by the Proclamation, because their county of residence was among those exempted from the coverage of the Proclamation.[9]
In addition, while on March 13, 1862 Lincoln had approved a new Congressionally enacted Article of War (No. 102) forbidding the military’s return of any fugitive slave to his putative master, that legislation did not declare such person free.[10] Lieber could, however, simply have relied upon this military law in explaining why the U.S. Army was precluded from returning escaped enslaved persons. But he preferred his own loftier pronouncements. Lieber simply ignored all existing U.S. law while embarking on his survey of historic Roman and European legal principles.
Lieber also ignored the fact that, since the Revolution, the United States had consistently and fiercely rejected the theory that slaves became free if they reached a belligerent army, expending considerable diplomatic efforts in support of its legal position.[11] Again, Lieber’s intellectual eyes were focused on every land except that in which he resided.
Summary: While admirable from a moral standpoint, Lieber’s academic and Euro-centric pronouncements with respect to freedom for the fugitive enslaved simply had no support, either in U.S. law or the Lincoln administration’s own legal theory of freedom’s scope. Indeed, Lieber’s Code contradicted many of the principles set forth in his adopted nation’s laws. Again, one must question how closely Lincoln studied the Code before sending it out into the world.
[1] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 3 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), pp. 148-164 (“OR”).
[2] John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South (Fordham University Press, New York, NY, 2005), pp. 7-9, 51.
[3] The following discussion is adapted in part from Kevin C. Donovan, “Beneath the Veneer,” North & South, Series II, Vol. 3, No. 6 (August 2023), pp. 40-41.
[4] The Code did, however, in its last Section (Articles 149-157) explain that the insurrectory states did not constitute a sovereign power, with the U.S. reserving the right to try rebel leaders for treason.
[5] John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South, Fordham University Press, New York, NY 2005), pp. 192-196.
[6] Sarah Kay Bierle, June 28, 1864: “Hereby, Repealed”, Emerging Civil War Blog, June 28, 2019, https://emergingcivilwar.com/2019/06/28/june-28-1864-hearby-repealed/.
[7] Prigg v. Pennsylvania, 41 U.S. 539 (1842).
[8] Transcript of the Proclamation, January 1, 1863, https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation/transcript.html.
[9] Allen Carden, Freedom’s Delay: America’s Struggle for Emancipation 1776-1865 (The University of Tennessee Press, Knoxville, TN, 2014), p. 285.
[10] OR, Series II, Vol. I, pg. 810. It merits comment that pursuant to the Constitution, it is Congress which is granted the authority “To make Rules for the Government and Regulation of the land and naval Forces.” Constitution, Article I, Section 8. This begs the question of the legal authority for Lincoln to promulgate the Lieber Code.
[11] Arnett G. Lindsay, “Diplomatic Relations between the United States and Great Britain Bearing on the Return of Negro Slaves, 1783-1828,” The Journal of Negro History, Oct., 1920, Vol. 5, No. 4 (Oct., 1920), pp. 391-419 (The University of Chicago Press on behalf of the Association for the Study of African American Life and History), https://www.jstor.org/stable/pdf/2713676.pdf; John Fabian Witt, Lincoln’s Code: The Laws of War in American History(Free Press, New York, NY, 2012), pp. 72-77.
I’ve searched and searched the National Archives, but so far have been unable to locate Congress’ declaration of war against the Confederate States of America, with the stated purpose being the emancipation of slaves and the destruction and banning of slavery. If someone could point out where to find it, or post a copy. Much thanks.
You won’t find any declaration of war because unilateral secession was seen as unconstitutional and an illegal act of rebellion. You will, however, find declarations of causes from many southern states establishing that they were seceding to protect slavery. Happy hunting.
https://prologue.blogs.archives.gov/2010/12/20/four-paragraphs-five-years-of-war/
Is it possible, gentlemen, that a war can have more than one cause, and that multiple causes can all be true at once without canceling each other out?
And a few resolutions of secession saying they were seceding because the Federal government intended to coerce the first 7 states back into the Union.
Tom
I’m really getting tired of having to establish this every other week. Can we at least discuss the actual post?
https://www.civilwarcauses.org/
thanks Kevin … one question: In your commentary about articles 42 and 43, you say the following: “Lieber’s use of European legal theory to free the enslaved ignored both the Constitution and the existing landscape of U.S. statutory law. The Constitution protected slavery throughout the land (calling into serious question the legality of the Emancipation Proclamation itself).” How does the Constitution protect slavery when the institution is never mentioned in that document? History and legal scholars have argued quite persuasively that since our founding documents are based on the the intent and spirit of the Laws of Nature (mentioned in Article 42), slavery has no legal standing at the national level. thanks again, another good piece.
I don’t want to speak for Kevin, but he’s probably referring to the Dred Scott decision, which de facto nationalized slavery by striking down the Missouri Compromise. It also said people of American descent couldn’t be U.S. citizens, which was the law of the land until 1868.
Mark,
Thank you. I am glad that you are enjoying the series. As all good things must come to an end, you will see the final installment this Friday (9/18), which addresses the legacy of the Code.
As to your question, you of course are correct that the words “slavery” or “slave” do not appear in the Constitution. Yet the institution is referenced at multiple points in the document; the framers simply used euphemisms to avoid the word “slavery,” even though all knew the institution was being referenced.
For example, Article II, Section 2, setting forth the apportionment of seats in the House of Representatives, contains the infamous “Three-Fifths Compromise.” House seats were apportioned based upon “the whole Number of free Persons, including those bound to Service for a Term of Years [i.e., indentured servants], and … three fifths of all other Persons.” All at the Constitutional Convention knew that those “other Persons” were the enslaved. Indeed, that was the basis of the debate that led to the compromise. Slave states had wanted the enslaved fully counted for the purpose of apportioning seats (giving them more political power); non-slave states wanted to restrict the counting to free persons.
In addition, Article II, Section 9, prohibited Congress until 1808 from prohibiting the “Importation of Such Persons as any of the States now existing shall think proper to admit…” That was a prohibition against interfering with the international slave trade. Notably, while the Constitution gave Congress the authority (ultimately) to end the slave trade, it did not grant it the authority to end slavery itself.
Now, I will grant you that neither of the above two provisions explicitly states that slavery is protected under the Constitution from any action of Congress to end such. But I think it fair to say that, when a new government apportions political power in part on the back of an institution (slavery), the states joining that government are right to assume that it does not have the authority to undo the deal by abolishing the institution that is a basis of the apportionment. Second, when a document expressly addresses a subject (the institution of slavery) and specifically states what the government may do on the subject, it is at least implied that the government may do no more against the institution. This is especially true when the framers consider the new government to have limited powers, those only delegated to it.
This all is before we consider the most explicit protection afforded the institution of slavery. Article IV, Section 2, the “Fugitive Slave Clause,” expressly mandated that “No Person held to Service or Labor in one State,” escaping into another state, could be deemed free by the laws of that second state. Moreover, the fugitive was required to be delivered up to his owner. That provision forbade states from emancipating fugitives. This was a direct limitation on state sovereignty, for the protection of slavery. This clause also was the basis of two Fugitive Slave Acts (1793 & 1850).
Finally, from the time of ratification of the Constitution up until the passage of the 13th Amendment, I think it was the widespread belief, even in the North, that the federal government had no authority to abolish slavery due to the Constitution protecting the institution (hence the need for the Amendment). Abraham Lincoln certainly thought so, and said so multiple times before and even after the war started (the Emancipation Proclamation is another topic for discussion). William Lloyd Garrison condemned the Constitution precisely because he believed that it protected slavery.
Again, thank you both for reading and raising topics for debate.
P.S. to M.A. Stay tuned for a two-part blog discussion of the Dred Scott case.
Wow. I have to say that I learned a lot in your response and it could be an article on its own. I’m sure there have been more than a few books written on the subject. I guess I never really thought through all the implications of those sections.
Thanks for the thoughtful follow-up, Kevin. You lay out the structural compromises cleanly, but conflating federal non-interference inside the states with an affirmative constitutional protection of slavery misses the essential framework the Framers built.
The absence of “slave” or “slavery” was not squeamish euphemism; it was an intentional, fought-over legal boundary. As James Madison—himself a major slaveholder—recorded in August 1787, the delegates deliberately struck that language because he “thought it wrong to admit in the Constitution the idea that there could be property in men.” The text systematically chose the word “Persons.”
That distinction was anchored in the 1772 Somerset v. Stewart doctrine, a touchstone of Anglo-American jurisprudence at the founding. Under Lord Mansfield’s ruling, slavery was so contrary to the laws of nature and natural law that it could never exist by mere implication or common law; it required explicit, local municipal statute—positive law. Where positive law stopped, natural liberty took over.
The Framers clearly understood this distinction. They made the concessions necessary to secure ratification—the 3/5ths representation ratio, the twenty-year window on the slave trade, and an extradition clause for fugitives. But taken in toto, they deliberately stopped short of nationalizing or constitutionalizing a property right in human beings. Under the 1787 design, the federal government had no enumerated power to abolish local domestic institutions within existing states, but neither did the Constitution affirmatively endorse or protect slavery on the national level. Slavery remained the peculiar institution of local positive law, leaving the national baseline rooted in natural rights.
That is why Lincoln could simultaneously maintain that the federal government had no peacetime authority to interfere with slavery in South Carolina, while vigorously insisting that the Constitution gave Congress full power to exclude it from the territories and federal domain. Taney tried to rewrite that founding consensus in Dred Scott by conjuring an affirmative federal property right out of thin air, but the Framers were meticulous: they tolerated a local municipal evil without giving it a national constitutional title.
Looking forward to your upcoming piece on Dred Scott—it’s the critical flashpoint where these competing doctrines finally collide.
Mark, you make excellent points (now referring to your 9/14, 2:12 pm entry). Here is another thought for discussion with reference to the 1772 Somerset v. Stewart case and doctrine.
For those not familiar with the case, Somerset was an important judgment of the English Court of King’s Bench. A person enslaved in America was brought to England, escaped and was recaptured there. Friends filed suit for his freedom. The court held that the enslaved person was free once he came onto English soil, because English law did not provide any statutory basis for slavery and without such, slavery cannot exist in a jurisdiction (the point Mark makes).
The U.S. Constitution arguably – repeat, arguably – overturned part of the Somerset doctrine in favor of slavery. The Fugitive Slave Clause (“FSC”) provided that an escaped enslaved person did not acquire his freedom by escaping into a state in which slavery was not authorized. One reading of Somerset (at least as reported by third parties – apparently there was no formal published opinion) would seem to require freedom for the fugitive. The FSC prohibited that result, even stating that no state could enact legislation freeing fugitives. From that perspective, the Constitution provided affirmative protection for slavery that Somerset arguably denied.
Now, I said “arguably.” The lawyer part that sadly remains in me questions whether the Somerset court would have reached the same result had the enslaved person escaped into England from without, instead of his owner having voluntarily brought him into England in the first place. I do not know. I could see arguments on each side. We do know that in the U.S., despite the FSC, states were routinely permitted to declare free any enslaved persons who were voluntarily brought into their (the free state’s) jurisdiction. The FSC only applied to fugitives. But, again arguably, the Constitution’s FSC overturned an aspect of Somerset by denying freedom to those enslaved who ended up on free soil.
As will be seen in a future post, on the eve of the Civil War, there was a case percolating up the judicial system that Northern free states feared would lead to the U.S. Supreme Court striking down the right of free states to declare free enslaved persons voluntarily brought into their jurisdiction.
This is an excellent discussion, all.
Kevin, are you familiar with the Matson Trial? Another historic event in my beloved Coles County, Illinois. Abraham Lincoln was actually hired to defend the slave owner in that case, Robert Matson, who skirted Illinois law by rotating slaves annually onto his farm. He emancipated one of his slaves, Anthony Bryant, to act as an overseer, but Bryant’s family was still enslaved. To make a long story short, Bryant sued, arguing that his family should be freed, since they lived in a free state. Orlando B. Ficklin, who ended up becoming a copperhead during the war, represented Bryant and won the case. The distinction was permanent vs. temporary residence.
I am clearly out of my league here and in the deep end of legal pool, but I suspect a learned legal mind of the time might respond that the Fugitive Slave Clause didn’t overturn Somerset—it conceded it. By deliberately specifying that a fugitive was held to service only ‘under the laws thereof’ rather than by natural right or national law, the Framers acknowledged that slavery was purely local, meaning Somerset’s baseline presumption of freedom still reigned everywhere that positive state law didn’t explicitly extinguish it. Great discussion by way. Your posts always generate a heated, but respectful debate!!!
Fair point on Taney’s intent, but Dred Scott was judicial activism at its worst—invented law that inverted the text itself. The Constitution deliberately scrubbed ‘property in men’ and treated enslaved people strictly as ‘persons,’ leaving bondage purely as local, positive state law (Somerset doctrine). Taney, who was hardly a disinterested party, fabricated a federal constitutional right to slave property out of thin air to strike down the Missouri Compromise. That’s why Lincoln and the 37th Congress treated the ruling as illegitimate, barred slavery from the territories in 1862 anyway, and grounded wartime emancipation in the law of nations and natural law. If you are looking for more, highly recommend James Oakes’ Freedom National: The Destruction of Slavery in the United States, 1861–1865 — it’s the gold standard for understanding how antislavery constitutionalism translated into practical wartime policy.
Thanks, I will check that out. I just now noticed that auto-correct changed “people of African descent” to “people of American descent” in my comment. Ugh…