Emancipation and the Law of War: A Different Take on the Feldman-Oakes Battle at The NYRB
BY: John Fabian Witt //Yale Law School
Over at the New York Review of Books, Noah Feldman and Jim Oakes are carrying on a classic NYRB pitched battle over Oakes’s review of Feldman’s recent book The Broken Constitution. Nearly two centuries after the antislavery world of William Lloyd Garrison, Lysander Spooner, Salmon Chase, and Frederick Douglass debated the status of slavery in the Constitution, the controversy still generates heat. Oakes’s lead role in criticizing the 1619 Project lurks in the wings. Feldman takes up the cudgel wielded in recent years by scholars like Paul Finkelman and activist-journalists like Nikole Hannah-Jones.
Did Lincoln break the Constitution (as Feldman argues) or vindicate it (as Oakes insists)? The debate will never end, because of course the answer is some of both. The answers historians and lawyers give to the question tell us as much about historians and lawyers as they do about the Civil War Constitution.
But when Oakes weighs in on the legality of Emancipation, he repeats a particular mistake about international law that warrants attention. Oakes wrongly states in his review that from the end of the Revolutionary War forward, the “United States repeatedly acknowledged the rights of belligerents to emancipate slaves of enemies during wartime.” Now in his latest NYRB riposte Oakes asserts that “Alexander Hamilton, Edmund Randolph, John Jay—indeed, just about every one of the Founders who went on record—affirmed that under the law of nations belligerents could emancipate enemy slaves in an effort to win a war or suppress a rebellion.” Neither proposition is true, nor is it true (as Oakes further claims) that the topic is “entirely missing” from Feldman’s book.
The truth is that until the Civil War American soldiers, statesmen, and jurists overwhelmingly adopted the view that belligerents could not lawfully free enemy slaves in wartime. I dedicated much of the first half of my book Lincoln’s Code to this proposition. A militarily weak slave society was desperately committed to the legal position. And Feldman’s book recites precisely the relevant history.
As I showed in Lincoln’s Code, the American tradition on the question began with the bitter reaction of American leaders to the Lord Dunmore’s 1775 proclamation of emancipation for slaves making it to British lines. The Declaration of Independence labeled Dunmore’s act an international atrocity, charging the King before the tribunal of “a candid world” with having “excited domestic insurrections amongst us.” Accordingly, Americans negotiating the Treaty of Paris in 1783 sought to bar British forces from “carrying away any Negroes” upon evacuation. George Washington took bitter exception when at least 3,000 formerly enslaved people left New York Harbor with British forces. Treaties of friendship and commerce in the 1790s and early 1800s prohibited wartime confiscation of private property, which American statesmen understood to include slaves. The text of the Treaty of Ghent at the end of the War of 1812 required that the British restore slaves and other private property to American owners. For more than a decade thereafter, John Quincy Adams pursued slaveholders’ claims for compensation pursuant to the Treaty, arguing that seizing slaves had been contrary to the laws and usages of war. It is no wonder, then, that when fighting broke out in the U.S. Civil War, many leading jurists North and South took the conventional U.S. view that proposals for emancipation were a lawless invitation to atrocity and slaughter. The famous Lieber Code of international laws of war, drafted by Francis Lieber and issued by Lincoln in 1863, finally reversed this long tradition. Indeed, as historian Matthew Mancini and I have argued, it was precisely the long tradition on the laws of war question that prompted the Lincoln administration to take the unprecedented step of issuing the code in the first place.
Strangely, Oakes knows all of this history very well. For one thing, he and I debated the question at Yale in 2013 and co-taught a course on the subject in 2014. The next year, in his book The Scorpion’s Sting, Oakes tried unaccountably to develop his claim about a long history of U.S. support for the legality of wartime emancipations. His effort there, as I told him at the time, is marred by apparently willful blindness to a crucial legal distinction. As a matter of eighteenth- and nineteenth-century international law, a state’s authority to free the slaves of its own nationals in wartime was uncontroversial, just as a state’s rearrangement of its internal resources in wartime would not be an issue of international humanitarian concern today. By contrast, the emancipation of enemy slaves was crucially a matter of international law concern. American statesmen and soldiers insisted that freeing an enemy’s slaves in wartime was impermissible. Such efforts with respect to enemy slaves, Americans contended, amounted to illegitimately targeting non-military private property and to inviting internecine humanitarian nightmares.
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