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A Lost Theory of American Emergency Constitutionalism

  • John Fabian Witt
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He thanks Gary Gerstle, Joel Isaac, David Dyzenhaus, and the participants in the States of Emergency Conference at Clare College, Cambridge, as well as Scott Shapiro, Will Smiley, and the members of the Yale Law School American Constitution Society Reading Group for reactions and helpful conversations. The reader reports for this article were uncommonly thoughtful; the author thanks the anonymous readers and Elizabeth Dale and Gautham Rao for shepherding them to him. He received indispensable research assistance on this project from students Michael Cotter, Berit Fitzsimmons, David Miller, Lauren Miller, Rob Nelson, Gabriel Perlman, Todd Spencer, and Brandon Thompson, and from John Nann and Michael VanderHeijden at the Yale Library.

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1. Blight, David, Race and Reunion: The Civil War in American Memory (Cambridge: Belknap Press, 2001); Foner, Eric, Reconstruction: America's Unfinished Revolution 1863–1879 (New York: Harper & Row, 1989); Rana, Aziz, “Freedom Struggles and the Limits of Constitutional Continuity,” Maryland Law Review 71 (2012); and William E. Forbath, “The Ambiguities of Free Labor,” Wisconsin Law Review (1985) (arguing that the Reconstruction Supreme Court exhumed the legacy of John Calhoun).

2. Ex Parte Milligan, 71 U.S. 2 (1866); see also Ex Parte McCardle, 74 U.S. 506 (1869); and Ex Parte Yerger, 75 U.S. 85 (1869).

3. Witt, John Fabian, Lincoln's Code: The Laws of War in American History (New York: Free Press, 2012); and Rana, “Freedom Struggles.”

4. The crucial text is James Randall, Constitutional Problems Under Lincoln (Urbana, IL: University of Illinois Press, rev. ed. 1951), which adopted the view that the Civil War was a needless and wasteful conflict.  Randall's book played a large role in constructing the historical memory of the Civil War era's emergency constitutionalism.  On the political compromises entailed in Milligan, see Witt, Lincoln's Code; Downs, Gregory, After Appomattox (Cambridge, MA: Harvard University Press, 2015); and Rana, “Freedom Struggles.”

5. See Witt, Lincoln's Code; Freidel, Frank, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947); Finkelman, Paul, “Francis Lieber and the Modern Laws of War,” University of Chicago Law Review 80 (2013): 2017–132; and Finkelman, Paul, “Lieber, Slavery, and the Problem of Free Thought in Antebellum South Carolina,” in Francis Lieber and the Culture of the Mind, ed. Mack, Charles R. and Lesesne, Henry H. (Columbia, SC: University of South Carolina Press, 2005), 1122.

6. Francis Lieber to Henry Halleck, June  2, 1863, Francis Lieber Papers, Huntington Library, San Marino, California (hereafter Huntington Lieber Papers); and Francis Lieber to Charles Sumner, May 24, 1863, Huntington Lieber Papers.

7. G. Norman Lieber, Meaning of the Term Martial Law as Used in the Petition of Right and the Preamble to the Mutiny Act 2–3 & n. (1877); Lieber, G. Norman, “Martial Law During the Revolution,” The Magazine of American History with Notes and Queries (New York: A.S. Barnes & Company, 1877), 1:538–41; and Lieber, G. Norman, “What is the Justification for Martial Law,” North American Review 163 (1896): 558.

8. Francis Lieber and G. Norman Lieber, Martial Law Treatise (ms.), Guido Norman Lieber Collection, Judge Advocate General Papers, Record Group 153, National Archives and Records Administration. For the forthcoming published version of the manuscript, see Lieber, Francis and Lieber, G. Norman, To Save the Country: A Lost Treatise on Martial Law, eds. Smiley, Will & Witt, John Fabian (New Haven: Yale University Press, 2019).

9. General Orders, No. 100, Instructions for the Government of Armies of the United States in the Field, reprinted in Witt, Lincoln's Code, 375–76. This version of Lieber's instructions corrects errors (most of them relatively minor) that appear in the most commonly cited versions.  Such errors have appeared in reprints of the instructions ever since the first commercially printed version appeared in 1863.

10. Schmitt, Carl, Political Theology, trans. Schwab, George (Chicago, IL: University of Chicago Press, 2005); Schmitt, Carl, Dictatorship, trans. Hoelzl, M. & Ward, G. (Cambridge: Polity Press, 2014); Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life, trans. Heller-Roazen, Daniel (Stanford, CA: Stanford University Press, 1998); see also Agamben, Giorgio, State of Exception, trans. Attell, Kevin (Chicago, IL: University of Chicago Press, 2005). It is worth noting that the idea of necessity substantially predates the idea of the state; a more precise formulation might be that necessity purports to license conduct that is required in the defense of the relevant political unit, which happens in the modern era to be the state. On necessity before the state, see Strauman, Benjamin, Crisis and Constitutionalism: Roman Thought from the Fall of the Republic to the Age of Revolution (New York: Oxford University Press, 2016).

11. On the United States as a legally constructed community, see, among many others, Amar, Akhil Reed, “A Few Thoughts on Constitutionalism,” Fordham Law Review 65 (1997): 1657–58; Tribe, Laurence H., “America's Constitutional Narrative,” Daedalus 141 (2012): 18, 34; and Rana, Aziz, “Constitutionalism and the Foundations of the Security State,” California Law Review 103 (2015): 335, 337; see also Witt, John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge, MA: Harvard University Press, 2007).

12. Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World (Chapel Hill: University of North Carolina Press, 2008), 157–69; and Scheppele, Kim Lane, “North American Emergencies: The Use of Emergency Powers in Canada and the United States,” International Journal of Constitutional Law 4 (2006): 213, 215–18; see also Wiener, Frederick B., Civilians Under Military Justice: The British Practice Since 1689 Especially in North America (Chicago, IL: University of Chicago Press, 1967); Prakash, Saikrishna Bangalore, “Sweeping Domestic War Powers of Congress,” Michigan Law Review 113 (2015): 1337, 1351–63; Dennison, George M., “Martial Law: The Development of a Theory of Emergency Powers, 1776–1861,” American Journal of Legal History 18 (1974): 5274; and Harold Relyea, “A Brief History of Emergency Powers in the United States: A Working Paper Prepared for the Special Committee on National Emergencies and Delegated Emergency Powers” (U.S. Sen., 93d Cong., 2nd sess., July 1974), 4–9.

13. Benton, Lauren and Ford, Lisa, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, MA: Harvard Press, 2016).

14. See Johannesson, Sveinn, “‘Securing the State': James Madison, Federal Emergency Powers, and the Rise of the Liberal State in Post-Revolutionary America,” Journal of American History 104 (2017): 363–85.

15. Cong. Globe, 24th Cong., 1st sess., appendix at 433–34.

16. Ford, Worthington Chauncey, The Writings of John Adams (New York: The Macmillan Company, 1915), 5:125–26; see also Bemis, Samuel Flagg, A Diplomatic History of the United States, 4th ed. (New York: Holt, Rinehart & Winston, 1955), 175176 n.2.

17. Moore, John Bassett, History and Digest of the International Arbitrations to which the United States Has Been a Party (Washington, DC: Government Printing Office, 1898), 1:352 n.1.

18. See, for example, Adams, Charles Francis, ed., Memoirs of John Quincy Adams (Freeport, NY: Books for Libraries Press, 1969), 3:256–57.

19. See American State Papers: Foreign Relations (Washington, DC: Government Printing Office, 1834), 4:106–125.

20. Witt, Compare, Lincoln's Code, 73–77, with James Oakes, The Scorpion's Sting (New York: W.W. Norton & Co., 2014).

21. Smith, Gene Allen, The Slaves’ Gamble: Choosing Sides in the War of 1812 (New York: St. Martin's Press, 2013); and Bemis, Samuel Flagg, John Quincy Adams and the Foundations of American Foreign Policy (New York: Alfred A. Knopf, 1949), 293. The question of whether the United States won has long been answered by American historians in the affirmative. Adams himself thought the United States had won. See Charles Francis Adams, Memoirs of John Quincy Adams, 6:45. But James Oakes has recently argued that the better reading would hold that the British won. See Oakes, Scorpion's Sting.

22. Bemis, John Quincy Adams and the Foundations of American Foreign Policy, 293

23. Smith, The Slaves’ Gamble. The sum was based on paying slave owners either $280, $390, or $580 for each slave, depending on where they were taken from. The two governments agreed that 3,582 slaves had been taken from the American coast: 1,721 from Virginia; 714 from Maryland; 833 from Georgia; 259 from Louisiana; 22 from Mississippi; 18 from Alabama; 10 from South Carolina; 3 from Washington, DC; and 2 from Delaware. Ibid.

24. Bemis, John Quincy Adams and the Foundations of American Foreign Policy, 293.

25. See Miller, William Lee, Arguing About Slavery: The Great Battle in the United States Congress (New York: Vintage Books: 1996).

26. See Freehling, William W., The Road to Disunion (Oxford: Oxford University Press, 1991), 1:260; and Nevins, Allan, The Diary of John Quincy Adams, 1794–1845 (New York: Charles Scribner's Sons, 1928), 226–32; see also MacLean, William Jerry, “Othello Scorned: The Racial Thought of John Quincy Adams,” Journal of the Early Republic 4 (1984): 143–60.

27. Cong. Globe, 24th Cong., 1st sess., appendix at 433.

28. Ibid., appendix at 433–34; see also Witt, Lincoln's Code; Miller, Arguing About Slavery; Freehling, Road to Disunion; Oakes, Scorpion's Sting; Richards, Leonard L., The Life and Times of Congressman John Quincy Adams (New York: Oxford University Press, 1986); Sewell, Richard H., Ballots for Freedom: Antislavery Politics in the United States, 1837–1860 (New York: W.W. Norton & Co., 1980).

29. Ford, Worthington Chauncey and Adams, Charles Francis, John Quincy Adams, His Connection with the Monroe Doctrine (1823) by Worthington Chauncey Ford, and with Emancipation under Martial Law (1819–1842) by Charles Francis Adams (Cambridge: John Wilson & Son, 1902), 7576.

30. Ibid., 73.

31. Ford and Adams, John Quincy Adams, 77; and “The Beginning of the End,” Harper's Weekly, Sep. 14, 1861, at 578 (describing John Quincy Adams's April 14, 1842 speech on slavery and the war power).

32. Douglass, Frederick, The Constitution of the United States: is it pro-slavery or anti-slavery? by Frederick Douglass; a speech delivered in Glasgow, March 26, 1860, in reply to an attack made upon his views by Mr. George Thompson (Halifax: T. & W. Birtwhistle, Printers, 1860), 10. Many thanks to Matt Steilen for pointing me to the Douglass passage.

33. Jasanoff, Maya, Liberty's Exiles: American Loyalists in the Revolutionary World (New York: Knopf, 2011), 4749; and Proclamation, Nov. 7, 1775, By His Excellency the Right Honourable John Earl of Dunmore, Evans Early American Imprint no. 14592.

34. Cong. Globe, 27th Cong., 1st sess., p. 38 (Wednesday, June 9, 1841); Adams, Emancipation Under Martial Law.

35. Martial Law by a Kentuckian (Louisville: Louisville Journal, 1842).

36. Ibid., 6.

37. Ibid.

38. Ibid.

39. Ibid., 7.

40. Ibid.

41. For a contemporary echo of the resistance to a necessity power that would transform the nation at the expense of the constitution, see Prakash, Saikrishna, “The Constitution as Suicide Pact,” Notre Dame Law Review 79 (2004): 1299, 1302–9.

42. Hale, Sir Matthew, History and Analysis of the Common Law of England (London: J. Nutt, 1713), 40.

43. Ibid., 41.

44. William Blackstone, Commentaries on the Laws of England (Chicago, IL: University of Chicago Press, 1979 [originally published 1765–176]), 1:400. The annually re-enacted Mutiny Act (annually re-enacted after the Glorious Revolution) authorized the application of military law within the ranks in times of peace inside the realm. See Lieber, Francis and Lieber, G. Norman, To Save the Country: A Lost Theory of Martial Law, eds. Smiley, Will and Witt, John Fabian (New Haven: Yale University Press, 2019).

45. “Speech of Mr. Davis,” Daily National Intelligencer, February 19, 1850, 1.

46. On the history of nineteenth-century martial law episodes in the United States, see Downs, After Appomattox; Warshauer, Matthew, Andrew Jackson and the Politics of Martial Law (Knoxville: University of Tennessee Press, 2006); Dennison, “Martial Law,” 53–79; Sofaer, Abraham D., “Emergency Power and the Hero of New Orleans,” Cardozo Law Review 2 (1981): 233, 238–52; Prakash, Saikrishna, “The Sweeping Domestic War Powers of Congress,” Michigan Law Review 113 (2015): 1337; and MacDonald, James, “Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundation of American Constitutionalism,” Virginia Law Review 96 (2010): 1361.

47. Warshauer, Andrew Jackson; and Dennison, “Martial Law,” 61–65.

48. Ibid.

49. Bullard, Mary R., Black Liberation on Cumberland Island in 1815 (DeLeon Springs, FL: E.O. Painter Printing Co., 1983); Cassell, Frank A, “Slaves of the Chesapeake Bay Area and the War of 1812,” Journal of Negro History 57 (1972): 144; George T. Christopher, “Mirage of Freedom: African Americans in the War of 1812,” Maryland Historical Magazine 91 (1996): 427; and Taylor, Alan, The Internal Enemy: Slavery and War in Virginia, 1772–1832 (New York: W.W. Norton, 2013).

50. Chaput, Erik J., The People's Martyr: Thomas Wilson Dorr and His 1842 Rhode Island Rebellion (Lawrence: University Press of Kansas, 2013).

51. Luther v. Borden, 48 U.S. 1 (1849).

52. Ibid., at 40 (Woodbury, J., dissenting).

53. Warshauer, Andrew Jackson, 210.

54. There had been occasional mobilizations of federal troops: in Richmond in 1800, in Mississippi in 1807, and in New Orleans in 1826, 1831, 1837, and again in 1840. See Adams, David, “Internal Military Intervention in the United States,” Journal of Peace Research 32 (1995): 197, 199.

55. Hadden, Sally, Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001); and Franklin, John Hope, “Slavery and the Martial South,” Journal of Negro History 37 (1952): 36, 43–44.

56. See Lieber and Lieber, Treatise on Martial Law.

57. Ibid.

58. See Kostal, Rande W., Jurisprudence of Power: Victorian Empire and the Rule of Law (New York: Oxford University Press, 2008).

59. See Hussain, Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003); see also “Alarm at Jamaica,” American Herald, February 6, 1800, 3; “Insurrection of the Slaves in Jamaica,” The Liberator, January 28, 1832, 2; “A Letter from Montego Bay,” The Liberator, February 18, 1832, 2; “Gentlemen,” City Gazette, November 28, 1817, 2. On martial law as a force both for emancipation and for the defense of slavery in Latin America, see Peter Blanchard, “Slave Soldiers of Spanish South America: From Independence to Abolition,” in Arming Slaves: From Classical Times to the Modern Age, ed. Christopher Leslie Brown and Philip D. Morgan (New Haven: Yale University Press, 2013).

60. Fehrenbacher, Don, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978); Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Union, NJ: The Lawbook Exchange, 2000); and Hyman, Harold M. and Wiecek, William M., Equal Justice Under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, 1982).

61. Scott v. Sandford, 60 U.S. 393 (1857).

62. Fehrenbacher, The Dred Scott Case.

63. Gordan, John D. III, “The Lemmon Slave Case,” Judicial Notice 4 (2006): 1, 8.

64. Lemmon v. New York, 20 N.Y. 562 (1860); Finkelman, An Imperfect Union, 290–98; and Nelson, William E., “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth-Century America,” Harvard Law Review 87 (1974): 546–47.

65. Wiecek, William M., “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American Word,” University of Chicago Law Review 42 (1974): 136–37; see also Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown, 1922), 3:82–83.

66. Dred Scott, 60 U.S. at 450–51.

67. Ibid., at 468 (Nelson, J., concurring).

68. Barron v. Baltimore, 32 U.S. 243 (1833).

69. Dred Scott, 60 U.S. at 468 (Nelson, J., concurring).

70. See Finkelman, An Imperfect Union, 285–338.

71. Some historians contend that this reading of Lemmon is too strong. See, for example, James W. Ely, Jr.’s review of Finkelman's An Imperfect Union: Book Review,” California Law Review 69 (1981): 1759–63. Critics such as Ely may be right that the Court of 1861 was not prepared to extend slaveholders’ rights to relocating their slave property to ostensibly free states. But had the Civil War not intervened, a court in subsequent years might well have considered doing so. For one thing, arguments that deprecate the risk that the court would extend the Dred Scott principle from territories to states underestimate the significance of the new scientific racism spreading through the United States in the second half of the nineteenth century. See Davis, David Brion, The Problem of Slavery in the Age of Emancipation (New York: Alfred A. Knopf, 2014), 328.

72. Wiecek, “Somerset,” 137.

73. This is why firing on Fort Sumter was such a notorious blunder. By turning to armed insurrection, the eleven states of the Confederacy brought into existence the only plausible conditions—martial law and emergency powers––under which Northern opponents could bring slavery to a forcible and sudden end. Jefferson Davis created the very emergency that John Quincy Adams, approximately 20 years before, had correctly predicted would transform the constitutional identity of the country.

74. Freidel, Francis Lieber; see also Mack and Lesesne, eds., Francis Lieber and the Culture of the Mind.

75. Ibid.

76. Lieber, Francis, “Martial Law,” in Encyclopaedia Americana (Philadelphia: Carey & Lea, 1831), 8:308–9. Lieber cited Matthew Hale's argument that martial law was not part of the common law, but only “indulged by the law rather than constituting a part of it.”  See Hale, History and Analysis of the Common Law.

77. Lieber, Francis, On Civil Liberty and Self-Government (Philadelphia: Lippincott, Grambo & Co., 1853), 1:131.

78. Ibid.

79. Mack and Lesesne, eds., Francis Lieber and the Culture of the Mind.

80. Clausewitz, Carl von, On War, trans. Howard, Michael and Paret, Peter (Princeton, NJ: Princeton University Press, 1978); and Howard, Michael, Clausewitz: A Very Short Introduction (Oxford: Oxford University Press, 2002).

81. See Witt, Lincoln's Code, 177–79; see also Lieber, Francis, Manual of Political Ethics (Boston: Charles C. Little & James Brown, 1839), 2:632–33; Francis Lieber, Law and Usages of War, No. II, October 29, 1861 (Notebook No. 2), box 2, Francis Lieber Papers, Johns Hopkins University.

82. Tilly, Charles, The Formation of National States in Western Europe (Princeton, NJ: Princeton University Press, 1975).

83. Freidel, Francis Lieber; and Witt, Lincoln's Code, 180–183.

84. Neely, Mark, Lincoln and the Triumph of the Nation (Chapel Hill: University of North Carolina Press, 2011); Neely, Mark, The Fate of Liberty (New York: Oxford University Press, 1992); Randall, James, Constitutional Problems under Lincoln (Urbana, IL: University of Illinois Press, rev. ed. 1951); Farber, Daniel A., Lincoln's Constitution (Chicago, IL: University of Chicago Press, 2003); Tyler, Amanda L., Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (New York: Oxford University Press, 2017), 159–84; Paulsen, Michael Stokes, “The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation,” Cardozo Law Review 15 (1993): 81; and Tillman, Seth Barrett, “Ex Parte Merryman: Myth, History, and Scholarship,” Military Law Review 224 (2016): 481.

85. Francis Lieber, “Dr. Lieber on the Writ of Habeas Corpus,” The New York Times, April 6, 1862, 3.

86. Observer, “The Rebellion and the Constitution,” The New York Times, November 30, 1861, 3.

87. Bates argued as follows: “If by the phrase the suspension of the privilege of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean, that, in case of a great and dangerous rebellion, like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion, that the President has lawful power to suspend the privilege of persons arrested under such circumstances. For he is especially charged by the Constitution with the ‘public safety,’ and he is the sole judge of the emergency which requires his prompt action.”  Edward Bates, “Suspension of the Privilege of the Writ of Habeas Corpus,” 10 Op. Att'y Gen. 74 (1861); see also Vladeck, Stephen, “Field Theory: Martial Law, the Suspension Power, and the Insurrection Act,” Temple Law Review 80 (2007): 406–7.

88. Halliday, Paul D., Habeas Corpus: From England to Empire (Cambridge: Belknap Press, 2010).

89. Binney, Horace, The Privilege of the Writ of Habeas Corpus under the Constitution (Philadelphia: C. Sherman & Son, 1862); see also Amar, Akhil Reed, America's Constitution: A Biography (New York: Random House, 2012); and Baude, William, “The Judgment Power,” Georgetown Law Journal 96 (2008): 1854.

90. Francis Lieber to Henry Halleck, January 30, 1862, Huntington Lieber Papers; Binney, The Privilege, 3; and Francis Lieber, “Dr. Lieber on the Writ of Habeas Corpus,” The New York Times, April 6, 1862, 3.

91. Sumner, Charles, “Emancipation Our Best Weapon,” in The Works of Charles Sumner (Boston: Lee & Shepard, 1874), 6:18.

92. Cong. Globe, 37th Cong., 3d Sess. 1421 (1863) (statement of Rep. Johnson) (“[The President] limits his proclamation of freedom to such slaves as were wholly beyond his reach …This proclamation was followed two days after by another suspending the writ of habeas corpus, declaring martial law in the loyal and peaceful States, and practically and substantially enslaving the free white men of the North. Sir, if these two proclamations are to be taken and construed together as the objects and purposes of this war … then I do not wonder at the intense alarm which pervaded the whole North  … I think the people were right in withdrawing their confidence from this Administration.”).

93. Cong. Globe, 37th Cong., 3d Sess. 133 (1863) (statement of Rep. Yeaman).

94. Lincoln nested the preliminary proclamation in an executive order authorized by Congress's Second Confiscation Act of the previous summer. To this extent, he bowed to congressional authority See Oakes, James, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (New York: W.W. Norton & Co., 2012). But the Proclamation took a different form than either the 1862 act or its predecessor, the First Confiscation Act of August 1861. Indeed, Lincoln was skeptical of Congress's capacity to deliver a general freedom to slaves, because in his view it was the president who had the authority to issue military orders. And, therefore, Lincoln's Emancipation Proclamation stood on its own as an executive order justified by military necessity and warranted to the extent that the emergency made emancipation a necessary step for the preservation of the republic.

95. See Guelzo, Allen C., Lincoln's Emancipation Proclamation: The End of Slavery in America (New York: Simon & Schuster, 2004).

96. Martial Law by a Kentuckian, 6–7.

97. The Rightful Power of Congress to Confiscate and Emancipate,” Monthly Law Report 24 (1862): 27.

98. Witt, Lincoln's Code, 240.; see also Mancini, Matthew, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War,” Journal of Southern History 77 (2011).

99. General Orders, No. 100, art. 14, in Witt, Lincoln's Code, 377

100. Ibid., art. 15.

101. Ibid.

102. Ibid., 376, art. 5.

103. See, for example, Childress, James F., “Francis Lieber's Interpretation of the Laws of War,” American Journal of Jurisprudence 21 (1976).

104. See, for example, General Orders, No. 100, art. 15, in Witt, Lincoln's Code, 377.

105. General Orders, No. 100, art. 105, in Witt, Lincoln's Code, 388.

106. Ibid., 386, art. 86.

107. Ibid., 377, arts. 12–13.

108. Ibid., 394, art. 157.

109. Benedict, Michael Les, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61 (1974), 6590; Benedict, Michael Les, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York: Norton, 1974); Amar, Akhil Reed, America's Unwritten Constitution (New York: Basic Books, 2012), 4995; Ackerman, Bruce, We the People: Volume 2: Transformations (Cambridge: Belknap Press, 2000), 99120.

110. Ex Parte Milligan, 71 U.S. 2 (1866); see also Mark Neely, The Fate of Liberty; Fairman, Charles, Reconstruction and Reunion, 1864–1888: The History of the Supreme Court of the United States, 2 vols. (New York: Macmillan, 1971–1987); Gross, Oren and Ni Aolain, Fionnuala, Law in Times of Crisis: Emergency Powers in Theory and Practice (New York: Cambridge University Press, 2006), 8698.

111. D. Richardson, James ed., A Compilation of the Messages and Papers of the Presidents, 1789–1897 (New York: Bureau of National Literature, Inc., 1902), 6:312–14, 432; and Stanberry, Henry, “The Reconstruction Acts,” 12 Op. Att'y Gen. 182, 199 (1867). See, for example, Cong. Globe, 40th Cong., 3rd Sess. 121 (1869) (statement of Sen. Doolittle) (“No plea of ‘war necessity,’ no ‘logic of events,’ nothing in the war on in the purpose of the war, can lead me to think for one moment that I am not bound by the Constitution as a Senator upon my oath and upon my conscience.”); Cong. Globe, 40th Cong., 2nd Sess. 775 (1868) (statement of Sen. Johnson) (“[I]n the vocabulary of the Constitution there is no such word as ‘necessity.’”); Cong. Globe, 40th Cong., 1st Sess. 3 (1867) (statement of Rep. Chanler) (“For a military commander, created under a past special necessity, to be allowed…to hold within his grasp the rights and destinies of the people whom he may be sent to rule over is inconsistent with the principles of the Declaration of Independence.”); and Cong. Globe, 39th Cong., 2nd Sess. 167 (1867) (statement of Rep. Wright) (“If the Congress of the United States can place military governors over ten States of this Union in the absence of any constitutional right to do so, why may they not place a military governor over every other State, until at last we shall be merged into an absolute monarchy or a military despotism?”).

112. Kostal, Rande W., A Jurisprudence of Power: Victorian Empire and the Rule of Law (New York: Oxford University Press, 2005); Heuman, Gad, “The Killing Time”: Morant Bay Rebellion in Jamaica (Austin: University of Texas Press, 1995); and Witt, John Fabian, “Anglo-American Empire and the Crisis of the Legal Frame,” Harvard Law Review 120 (2007).

113. Witt, “Anglo-American Empire,” 787.

114. Michael Lobban, “William Francis Finlason (1818–1895),” in Oxford Dictionary of National Biography. http://www.oxforddnb.com/view/article/9462 (June 27, 2018).

115. Finlason, William Francis, A Treatise on Martial Law: As Allowed by the Law of England: In Time of Rebellion (London: Stevens & Sons, 1866); Finlason, William Francis, Commentaries Upon Martial Law With Special Reference to Its Regulation and Restraint (London; Stevens & Sons, 1867); Finlason, William Francis, A Review of the Authorities as to the Repression of Riot or Rebellion (London: Stevens & Sons, 1868); and Finlason, William Francis, The History of the Jamaican Case (London: Chapman & Hall, 1869).

116. Finlason, A Treatise on Martial Law, xxvi.

117. Ibid., xiv.

118. Ibid., xi.

119. Ibid.

120. Ibid., xxxi.

121. Ibid., xiv; see also Dyzenhaus, David, “The Puzzle of Martial Law,” University of Toronto Law Journal 59 (2009): 1719.

122. Finlason, A Treatise on Martial Law, xxxi.

123. Ibid., xxxii.

124. Ibid.

125. Ibid.

126. Ibid., xxxv. For a general argument about the role of empire in the elaboration of legal regimes for emergency, see Hussain, Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003).

127. Finlason, A Treatise on Martial Law, xxxiii.

128. Ibid., xvi.

129. Ibid.

130. Francis Lieber to Henry Halleck, June 2, 1863, Huntington Lieber Papers; and Francis Lieber to Charles Sumner, May 24, 1863, Huntington Lieber Papers.

131. Code for the Government of Armies in the Field (register no. 243077), Huntington Library, San Marino, California.

132. Leonard, Elizabeth D., Lincoln's Avengers: Justice, Revenge, and Reunion after the Civil War (New York: W.W. Norton & Co., 2004); Leonard, Elizabeth D., Lincoln's Forgotten Ally: Judge Advocate General Joseph Holt of Kentucky (Chapel Hill: University of North Carolina Press, 2011); Kastenberg, Joshua E., The Blackstone of Military Law: Colonel William Winthrop (Lanham, MD: The Scarecrow Press, 2009); and Witt, Lincoln's Code.

133. Norman Lieber took a large part of his father's book collection, which eventually made its way into the collection of the judge advocate general of the United States and then to the library of the Judge Advocates’ School in Charlottesville, Virginia. The collection can now be found in the Library of Congress.

134. G. Norman Lieber, Meaning of the Term Martial Law.

135. Lieber and Lieber, Treatise on Martial Law.

136. Ibid.

137. See, for example, ibid.

138. Guido Norman Lieber Collection, Judge Advocate General Papers, Record Group 153, National Archives and Records Administration.

139. Recall here that Lieber himself had associated martial law and military law in his Encyclopedia Americana entry on martial law.

140. Lieber and Lieber, Treatise on Martial Law.

141. Ibid.

142. Ibid.

143. Ibid. Compare Huntington, Samuel P., The Soldier and the State (Cambridge: Belknap Press, 1981).

144. Ibid.

145. Ibid. (quoting The Federalist, No. 28).

146. Ibid. Note that Lieber did not treat necessity and martial law as two different powers, the former extraconstitutional the latter not. For this approach, see Vladeck, “Field Theory,” 391.

147. 1 Bishop, Joel Prentiss, Commentaries on the Criminal Law, 3rd ed., 506, s. 910 (Boston: Little, Brown, 1865).

148. Grotius, Hugo, The Rights of War and Peace, ed. Tuck, Richard (Indianapolis: Liberty Fund, 2005); Hobbes, Thomas, Leviathan, ed. Tuck, Richard (New York: Cambridge University Press, 1996).

149. The Liebers observed that even the Milligan majority conceded as much.

150. Lieber and Lieber, Treatise on Martial Law.

151. Ibid.

152. Ibid.

153. Ibid.

154. Ibid.

155. See, ibid.

156. See text at notes 116–29 above.

157. Clausewitz, On War, 75.

158. Schmitt, Political Theology; and Agamben, State of Exception.

159. Lieber and Lieber, Treatise on Martial Law.

160. Ibid.

161. Ibid., see also The Trial of Lieutenant-Colonel, Joseph Wall, Late Governor of Goree, at The Old Bailey, On Wednesday, January 20, 1802; for the Wilful Murder of Benjamin Armstrong, A Serjeant of The African Corps, July 10, 1782 (London: Sabine & Son, 1782).

162. Lieber and Lieber, Treatise on Martial Law; see also Bryant, Joshua, Account of the Insurrection in Demerara (Demerara: A. Stevenson, 1824), 6061.

163. Lieber and Lieber, Treatise on Martial Law; Forbes, Jonathan, Recent Disturbances and Military Executions in Ceylon (Edinburgh: William Blackwood and Sons, 1850), 1822.

164. A Memorandum: Reasons Why Jefferson Davis Ought Not To Be Tried by Military Commission for Complicity in the Unlawful Raiding, Burning, Etc. (July 1865), folder 33, box 2, FLP, JHU.

165. General Orders, No. 100, art. 80, in Witt, Lincoln's Code, 385.

166. Ibid., 383, art. 56.

167. Kramer, Paul, The Blood of Government:  Race, Empire, the United States, and the Philippines (Chapel Hill: University of North Carolina Press, 2006); Witt, Lincoln's Code, 353–65; Paul Kramer, “The Water Cure,” The New Yorker, February 25, 2008, 38–43; Trials or Court-Martial in the Philippine Islands in Consequence of Certain Instructions, Senate Doc. No.213, 57th Cong., 2nd sess. (1903) at 26.

168. General Orders No. 100, art. 70, in Witt, Lincoln's Code, 384.

169. See Francis Lieber, Law and Usages of War, No. IV, December 17, 1861 (Notebook No. 4), box 2, Francis Lieber Papers, Johns Hopkins University.

170. See, for example, McMahan, Jeff, “Torture, Morality, and Law,” Case Western Reserve Journal of International Law 37 (2006): 241. For a contrasting perspective, see Fried, Charles and Fried, Gregory, Because It Is Wrong: Torture, Privacy, and Presidential Power in the Age of Terror (New York: W.W. Norton & Co., 2010).

171. See Horton, Scott, “Kriegsraison or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards the Conduct of War,” Fordham International Law Journal 30 (2007): 586; cf. Meron, Theodore, “Francis Lieber's Code and Principles of Humanity,” Columbia Journal of Transnational Law 36 (1997): 281.

172. General Orders No. 100, art. 14, in Witt, Lincoln's Code, 377.

173. See Francis Lieber, Law and Usages of War, No. IV, December 17, 1861 (Notebook No. 4), box 16, Francis Lieber Papers, Johns Hopkins University

174. See Strauman, Benjamin, Crisis and Constitutionalism (New York: Oxford University Press, 2016) 42–43; see also Fatovic, Clement, Outside the Law: Emergency and Executive Power (Baltimore: Johns Hopkins University Press, 2009); Friedrich, Carl Joachim, Constitutional Reasons of State (Providence, RI: Brown University Press, 1957); Lazar, Nomi Claire, States of Emergency in Liberal Democracies (New York: Cambridge University Press, 2009); and Poole, Thomas, Reason of State: Law, Prerogative, Empire (New York: Cambridge University Press, 2015).

175. David Dyzenhaus, “The Safety of the People is the Supreme Law,” The New Rambler, October 25, 2016.

176. Locke, John, Two Treatises on Government, ed. Laslett, Peter (New York: Cambridge University Press, 1960 [originally published 1690]), 2:160

177. Ibid..

178. Ibid., sec. 163

179. Locke, Two Treatises, sec.139.

180. Ibid.

181. Ibid., sec. 168.

182. Lieber and Lieber, Treatise on Martial Law.

183. See See Post, Robert, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” California Law Review 77 (1989): 957; and Post, Robert, “Defending the Life World: Substantive Due Process in the Taft Court Era,” Boston University Law Review 78 (1998): 1489.

184. Locke, Two Treatises, sec. 164–65. For a sample of works in the contemporary debate over whether Locke is properly read as an internalist or an externalist, compare Gross and Aolain, Law in Times of Crisis, 121–22 (externalist), with Dyzenhaus, David, “The State of Emergency in Legal Theory,” in Global Anti-Terrorism Law and Policy, ed. Ramraj, Victor, Michael Hor, Kent Roach, and George Williams (New York: Cambridge University Press, 2005) (internalist); Fatovic, Outside the Law, 55–56 (internalist); and Lazar, States of Emergency, 67–80 (internalist).

185. Political theorist Clement Fatovic argues that David Hume's account of public opinion's role as the ultimate foundation of government offers a similar theory of constraint on abuses of extralegal power in times of emergency. See Fatovic, Outside the Law, 121–22. Hume himself does not seem to make the connection, but Fatovic's extension of Hume seems a natural reading of the Humean theory's implications. As Fatovic puts it, “the informal normativity of public opinion” in Hume's account might be thought to serve as “the ultimate check against abuses.” Ibid., 121. Neither Hume nor the Liebers are sufficiently concrete or detailed in their treatments of the constraining effects of public reason and public opinion to be sure how their theories might play out in comparison with one another.

186. 54 U.S. 115, 134 (1851).

187. Hogue v. Penn, 66 Ky. 663, 665 (1868)

188. Worthy v. Kinamon, 44 Ga. 297 (1871); and Wilson v. Franklin, 63 N.C. 259 (1869).

189. Amar, Akhil Reed, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997); and Amar, Akhil Reed, “Of Sovereignty and Federalism,” Yale Law Journal 96 (1987): 1487–92; see also Lieber and Lieber, Treatise on Martial Law.

190. 54 U.S. at 135.

191. Cong. Globe, 32nd Cong., 1st Sess. 44 (1852)

192. See Symonds, Craig, Lincoln and His Admirals (New York: Oxford University Press, 2008); Witt, Lincoln's Code, 147; Sloss, David, Ramsey, Michael D., and Dodge, William S., “International Law in the Supreme Court to 1860,” in International Law in the U.S. Supreme Court: Continuity and Change (New York: Cambridge University Press, 2011), 25 (noting that from the Marshall era to the Taney years, the Supreme Court “directly applied the law of nations without controversy to the conduct of both foreigners and Americans [including American naval officers] in admiralty disputes”); see also Sloss, David, “Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation,” Washington & Lee Law Review 71 (2014): 1801–3.

193. For an extension of this point, see Morrison, Trevor, “Suspension and the Extrajudicial Constitution,” Columbia Law Review 107 (2007): 1533.

He thanks Gary Gerstle, Joel Isaac, David Dyzenhaus, and the participants in the States of Emergency Conference at Clare College, Cambridge, as well as Scott Shapiro, Will Smiley, and the members of the Yale Law School American Constitution Society Reading Group for reactions and helpful conversations. The reader reports for this article were uncommonly thoughtful; the author thanks the anonymous readers and Elizabeth Dale and Gautham Rao for shepherding them to him. He received indispensable research assistance on this project from students Michael Cotter, Berit Fitzsimmons, David Miller, Lauren Miller, Rob Nelson, Gabriel Perlman, Todd Spencer, and Brandon Thompson, and from John Nann and Michael VanderHeijden at the Yale Library.

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