by James Oakes
Nor was military emancipation an invasion of property rights, because slaves were not “property” under the Constitution. Here again the abolitionist premises of Lincoln’s proclamation were clarified in the legal debate it provoked. In the United States slaves were “property” only under state or “municipal” laws. By contrast, the Massachusetts Republican William Whiting explained in his 1863 justification for emancipation, the Constitution “recognizes slaves as ‘persons held to labor or service.’ ” Legally this made “slaves” no different from apprentices or children, for they too were “persons held to labor or service.” Whatever the property claims that slave states might conjure up, Whiting argued, “the constitution recognizes only the claim of individuals to the labor and service of other individuals.” Because there was no property right at stake none of the legal safeguards against property confiscation applied to military emancipation and the slaveholders had no legitimate claim to compensation for their emancipated slaves.16 All of this would have been familiar to antislavery politicians by 1860.
More startling was the wartime evolution of the theory behind the practice of military emancipation. In late 1862, General in Chief Henry Halleck and Secretary of War Edwin Stanton invited Francis Lieber, a distinguished professor of law at Columbia University, to summarize the “articles of war” that would govern the Union army. A number of issues had to be dealt with—prisoner exchanges, the treatment of prisoners of war, the army’s policy regarding enemy civilians—but none was more urgent than the Union army’s approach to slaves owned by the enemy. This was clearly a critical issue. Lincoln had announced that he was about to issue an emancipation proclamation covering all rebellious areas of the South. On what legal basis could he do so? The “code” that Lieber drew up in early 1863 provided a theory of military emancipation.17
For years abolitionists argued that the Constitution was a natural-law document and that natural law decreed that all men were created equal. Hence slavery was incompatible with the natural-law principles of the Constitution. But Lieber pushed the argument further by reconstructing the dizzying chain of inferences linking military emancipation to the antislavery premises of natural law. Connect the dots: the laws of war were part of the law of nations, the law of nations was based on natural law, slavery was incompatible with natural law, hence in wartime belligerents had the right to restore slaves to their “natural” condition of freedom. In Lieber’s elegant hands it all seemed so respectably constitutional. Because the law of nations was inscribed in the treaty-making provisions and treaty-like character of the Constitution, and because the laws of war were embedded in the war powers clause of the Constitution, military emancipation was strictly within the Constitution. And not only that. Because both the law of nations and the laws of war were based on natural law, military emancipation was ultimately justified by the natural-law principle of fundamental human equality.
More than a dozen of the 157 articles in Lieber’s code dealt with slavery, but two in particular, Nos. 42 and 43, summarized the philosophical principles on which military emancipation was based. Lieber began from the crucial abolitionist premise that slaves were “property” under local law but not under the Constitution. Slavery thus complicated and confounded ideas of property and personalty, Lieber wrote, for the slave was legally both a “thing” and a “human” at the same time. This made slavery unnatural, and for that reason the “law of nature and nations has never acknowledged it.” Citing the Justinian Code, Lieber declared that “so far as the law of nature is concerned, all men are equal.” Because the Constitution was based on natural law, slave property therefore “exists according to municipal or local law only.” For this reason fugitive slaves escaping into another country “have, for centuries past, been held free and acknowledged free by judicial decisions in European countries.” That being the case, Lieber concluded, “in a war between the United States and a belligerent which admits of slavery,” any fugitive who runs for protection into the lines of the U.S. military “is immediately entitled to the rights and privileges of a freeman.”18
With the Lieber Code the Somerset principle became the law of the land. In 1772, Lord Mansfield, speaking from the Court of King’s Bench, had ruled that slavery existed only where local or “municipal” law created it, and since no such law existed in England, “slavery” could exist only as a servile status rather than a property right. Mansfield ruled that the master had forfeited his property claim in the slave, Somerset, as soon as the slave set foot on English soil. In England, slaves were legal persons held in service. Under the theory of military emancipation, what had happened to Somerset also happened to slaves in the disloyal states during the Civil War. Secession nullified the state and local laws creating a property right in slaves and federal policy was thereafter guided only by the constitutional definition of slaves as “persons held in service.” Because the Union army was the creature of the federal government, fugitive slaves escaping from any belligerent states were immediately emancipated upon entering Union lines.
If Lieber had merely published his conclusions as a contribution to a lawyer’s debate over the legality of military emancipation it would remain an interesting curiosity in the history of antislavery thought. But Lieber’s code was much more important than that. He was authorized to draft it by two high-ranking officials in the Lincoln administration—the secretary of war and the general in chief. He then submitted his draft to the president, who reviewed and edited the code before approving it. On April 24, 1863, the Lieber Code was issued by the adjutant general’s office of the War Department as General Orders No. 100. The abolitionist logic of military emancipation was thereby embedded in the articles of war governing the conduct of the U.S. Army. Lieber’s code became, in effect, the Lincoln administration’s official legal justification for military emancipation.19
CITIZENSHIP AND EMANCIPATION
In his Preliminary Proclamation of September 1862, Lincoln declared that the slaves, once emancipated, were “forever free.” He quoted the line at the beginning of the final proclamation and reiterated it later in slightly different wording: the slaves in all rebellious areas of the South “are, and henceforward shall be free.” Once emancipated, the freed people could never be re-enslaved. The point seems obvious to us now, but it was not obvious at the time. On the contrary, in defending military emancipation, antislavery lawyers like Lowrey and Lieber went out of their way to explain why, once they were emancipated, the freed people could never be legally re-enslaved. Re-enslavement was impossible, they said, because at the moment they were freed, blacks became citizens of the United States and a citizen can never be enslaved.
Lawmakers worried about re-enslavement far more than they feared a Supreme Court opinion declaring emancipation unconstitutional. Republicans didn’t like Chief Justice Roger Taney, but they weren’t especially afraid of him. Whenever he issued a ruling they disagreed with they simply ignored it. There was a more pervasive fear that once the war was over, the U.S. courts in general—not merely Taney’s Supreme Court—would limit and possibly even invalidate the wartime military emancipations. But what frightened Republicans most of all was that the courts would uphold the states in their attempts to preserve slavery. When the war was over, slavery would revert to its status as a strictly state institution, and slaves emancipated during the war might be re-enslaved by the restored state governments. By the spring of 1862, Border State representatives in Congress were openly threatening that once the rebellion was suppressed the southern states would not only re-enslave the freed people but would go further and in their righteous anger enslave all blacks, even those who had been free before the war. Re-enslavement was not merely an abstract threat. Blacks in the Sea Islands had long expressed a legitimate fear that they would be re-enslaved as soon as the Union army left or was driven out by the Confederates. And indeed by the middle of 1862, blacks who had been emancipated by the Union army in other parts of the South were being re-enslaved in areas recaptured by t
he Confederates. Re-enslavement was, in fact, the official Confederate policy.20
The threat of re-enslavement put Republicans in an unusual position. Having defended the constitutionality of the Emancipation Proclamation by pointing out that it did not interfere with a state’s right to create or destroy slavery, policymakers had to find some legal means of denying a state’s right to enslave, or re-enslave, anyone who was already free. Lowrey and Lieber did this by distinguishing a right to own slaves in a state where slavery was legal—a right the federal government could not interfere with—from the power to enslave someone who was already free—a power they insisted no state could rightfully claim. Slavery might be legal, but enslavement and re-enslavement could never be. Why not? Because blacks were citizens of the United States and enslavement would be a flagrant violation of the “privileges and immunities” to which all citizens were entitled. To ensure that emancipated slaves were “forever free,” Republicans adopted the principle of color-blind national citizenship.
In the immediate aftermath of the American Revolution most state courts acknowledged that free blacks were entitled to some, if not all, of the rights of citizenship. As sectional tensions developed, however, northern and southern courts went their separate ways on the citizenship rights of free blacks. Many northern states passed “personal liberty” laws designed to inhibit enforcement of the fugitive slave clause of the Constitution by guaranteeing due process—one of the essential “privileges” of citizenship—to any black man or woman accused of being a fugitive slave. The Fugitive Slave Act of 1850 was designed to undermine those state laws by making the federal government the enforcement agent of the fugitive slave clause. Undeterred, several northern states passed a new round of personal liberty laws in the 1850s, all of them based on the assumption that accused fugitives were “citizens” of the states.21
Like most northerners, Abraham Lincoln had almost nothing to say about citizenship until the fugitive slave crisis of the 1850s, yet he repeatedly gestured in the direction of the abolitionist argument by hinting that free blacks were entitled to at least some of the due-process rights associated with citizenship. Commenting on the Fugitive Slave Act of 1850, Lincoln said a few years after its passage that he would have preferred a statute that “did not expose a free negro to any more danger of being carried into slavery, than our present criminal laws do an innocent person to the danger of being hung.” Acknowledging that the Constitution did contain a fugitive slave clause, Lincoln urged his fellow Republicans to revise rather than repeal the 1850 law lest they alienate too many swing voters. He insisted nonetheless that the law “should have been framed so as to be free from some of the objections that pertain to it.”22
Chief Justice Roger Taney’s 1857 decision in the Dred Scott case forced Lincoln and many other northerners to think more deeply about the issue of black citizenship. Taney ruled that blacks were not and never had been citizens of the United States; because blacks had not been citizens of the states in either 1776 or 1789, they could not be citizens of the United States in 1857. States were perfectly free to extend some of the privileges and immunities of citizenship to whomever they chose, Taney ruled, but no state could ever, under any circumstance, grant U.S. citizenship to blacks.23 Taney defined national citizenship as an inheritance bequeathed only to the descendants of those who had been citizens at the moment of the nation’s founding.
Two weeks after Taney published his decision Lincoln criticized the chief justice for insisting “at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution.” A year later, Lincoln tied the high court’s denial of black citizenship to a conspiracy to make slavery national and perpetual, a conspiracy that began with Taney’s claim “that a negro cannot be a citizen.” The court’s purpose, Lincoln explained, was “to deprive the negro, in every possible event, of the benefit of that provision of the United States Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’ ” Lincoln’s statements on black citizenship were hesitant and inconsistent during the late 1850s, yet it was already clear that in his mind the denial of black citizenship was part of an attempt to make slavery perpetual. By inverse logic, black citizenship would make emancipation perpetual. It would ensure that once they were freed the former slaves were “forever” free—but only if blacks were citizens of the United States, and only if national citizenship trumped state citizenship.24
The first indication that Lincoln might be thinking of national black citizenship emerged during the secession crisis shortly after his election in November of 1860. As president-elect, Lincoln was under pressure to offer some substantive compromise proposal that might forestall the secession of the southern states and prevent civil war. Unwilling to bend on the issue of slavery in the territories, Lincoln instead proposed a compromise on the issue of fugitive slaves. Secessionists complained endlessly about the personal liberty laws northern states passed in their efforts to thwart the Fugitive Slave Act of 1850. In response Lincoln was willing to concede that the fugitive slave clause should be enforced by the federal government, but in return for that concession Lincoln wanted two crucial revisions of the Fugitive Slave Act of 1850: first, all private citizens would be absolved from any obligation to help execute the law, and, second, the revised law would have to include “the usual safeguards to liberty, securing free men against being surrendered as slaves.” The federal government would thereby guarantee the due-process rights of all accused slaves. In effect, national black citizenship was the price slaveholders would have to pay for national enforcement of the fugitive slave clause.25 Southern leaders rejected his proposal out of hand and even Lincoln’s friends warned him that most Republicans were “unwilling to give up their old opinion that the duty of executing the constitutional provisions concerning fugitives belongs to the States.”26
A few months later, in his inaugural address, Lincoln once again raised the related issues of citizenship and the rendition of fugitive slaves. Secessionists believed enforcement was a federal responsibility, but most antislavery politicians believed that since slavery was a state institution the states alone should be responsible for the capture and return of fugitive slaves. Lincoln noted that there was “some difference of opinion” about who was responsible for enforcing the fugitive slave clause. “Shall fugitives from labor be surrendered by national or by State authority?” Lincoln asked. “The Constitution does not expressly say.” But he still seemed willing to accept federal enforcement in return for federal recognition of citizenship for African Americans. In “any law upon this subject,” he said, “might it not be well, at the same time, to provide by law for the enforcement of that clause in the Constitution which guaranties that ‘The citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States’?” Lincoln was once again proposing a revision of the Fugitive Slave Act that explicitly accorded to blacks federal recognition of the “privileges and immunities” of citizenship. What Lincoln hinted at in his inaugural address his administration formally proclaimed a year and a half later.27
In late 1862, with the Emancipation Proclamation about to be issued, the citizenship status of the freed people became an urgent question. Treasury Secretary Chase sent a request to Edward Bates, the attorney general, asking whether, as a matter of policy, “colored men [are] citizens of the United States.” In reply Bates produced an astonishing document, nearly thirty pages long, repudiating everything Chief Justice Taney had to say about black citizenship. Bates made three crucial claims. First, he said, there is no such thing as “partial” citizenship. Anyone entitled to any of the privileges and immunities of citizenship was entitled to all of them. Second, as far as citizenship was concerned, there was no distinction between blacks and whites. The Constitution “says not one word, and furnishes not one hint, in relation to the color or to the ancestr
al race” of citizens. Finally, and perhaps most important, Bates declared that national citizenship took precedence over state citizenship. The privileges and immunities granted to citizens of the United States “cannot be destroyed or abridged by the laws of any particular state,” Bates reasoned. On this point, he said, the Constitution “is plain beyond cavil.” Citizenship in the United States is “an integral thing”; it cannot be “fractionalized,” broken down into parts; it cannot mean one thing in one state and something else in another state. In sum, Bates concluded, free blacks were full citizens of the United States, and no state could deprive them of the privileges and immunities attaching to their citizenship. Even blacks born and raised as slaves on American soil became citizens as soon as they were emancipated. Slaves set free by the proclamation or by the war, Bates explained on January 5, 1863, were not partly free but fully free. “In the language of the Constitution they will be ‘free persons’ ” and as such were entitled to all the protections of freedom the Constitution guaranteed to all citizens.28
If the attorney general was right—if emancipated slaves were “free persons” as understood by the Constitution—it would mean that freed blacks could never be re-enslaved, for that would amount to a gross deprivation of the privileges and immunities of citizenship. This may have been one of the reasons why Bates issued his opinion. He sent it to Chase on November 29, 1862, one month before Lincoln released the Emancipation Proclamation. The timing may have been fortuitous, but that hardly seems likely. When Lincoln said that slaves once freed could never be re-enslaved he was assuming, like Bates, that no state had the power to deprive any American of the rights and privileges of citizenship. Variations on this theme were repeated in the legal commentaries on the constitutionality of military emancipation. A slave “whom we capture as property” under state law, Lowrey explained, is by the act of emancipation “no longer a chattel, but a man, insusceptible of recapture.” As a “man” the emancipated slave is “entitled to all the rights and privileges of such persons.” Re-enslavement was impossible because once someone’s “status as a slave is suspended,” even “for a moment,” Lowrey explained, the slave was “remitted to his natural rights as a man.” When that happened “there is no power on earth to take away his freedom.” Francis Lieber made the same point. Emancipated slaves were “immediately entitled to the rights and privileges of a freeman,” he explained. “To return such a person into slavery would amount to enslaving a free person.” If the federal government had no such power, Lieber declared, neither did the states.29