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 While each action had been revoked by Lincoln, who insisted upon retaining in his own hands the issue of emancipation,[2] Lieber asserted the radical proposition that Fremont and Hunter had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.