Friday, June 03, 2022

Emancipation and the Law of War: A Different Take on the Feldman-Oakes Battle at The NYRB

Guest Blogger

John Fabian Witt

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. 

Oakes new reassertion that the Founders affirmed the power to free enemy slaves in wartime seems to rest on the role of Hamilton, Randolph, and Jay in negotiating the Jay Treaty of 1794, which abandoned Southern planters claims for the return of the 20,000 enslaved people who left with the British.  But the Jay Treaty cannot bear the interpretive weight Oakes places on it.  To be sure, the Southern planter class expressed considerable anger over the treaty’s apparent failure to redress their claims.  But Jay’s failure to gain the return of tens of thousands of people to slavery more than a decade after the end of the War of Independence, and his inability in the alternative to wrest compensation for what Jefferson’s partisans called the kidnapping of American slaves, did not signal American acquiescence to the principle that the laws of war permitted enemies to free enslaved people.  To the contrary, the Jay Treaty omission of compensation for lost slaves reflected the strategic weakness of the new republic.  As Paul Finkelman has shown, Jay himself argued that “satisfaction for the Negroes had been obtained” in the form of the treaty’s concessions to American interests in the Northwest Territory and trading rights in the West Indies (Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (3d ed. 2014), p. 172).  In any event, the 1794 treaty did not end American agitation over the issue.  Before the ink on the treaty was dry, southern Senators had already renewed the issue of compensation for the slaves.  Years later, when the U.S. extracted land from Creek Indians who had been allied with the British in the War of Independence, the cession described the ceded land as being in partial repayment for slaves illegally captured and freed in the War for Independence (Fehrenbacher & McAfee, The Slaveholding Republic (2001), p. 93).

One further note on all of this: my co-author Bennet Ostdiek and I have already shown at great length the tendentiousness of Oakes’s position on the international laws of war and slavery.  Against the long-time scholarly consensus, Oakes’s The Scorpion’s Sting contended that the U.S. had actually lost the 1822 international arbitration in which Czar Alexander resolved the dispute over the slaves who left with British forces during the War of 1812.  Ostdiek and I went deep into the American, British, and Russian archives to show that Oakes’s badly misinterpreted the key evidence.  (Bennett Ostdiek & John Fabian Witt, “The Czar and the Slaves,” American Journal of International Law, volume 113, issue 3, July 2019, pp. 535-67).  Ostdiek and I shared the article with Oakes in draft and thanked him in the article’s acknowledgments.  Apparently, the article left no impression.

One final note: the fact that Oakes is mistaken about the long history of U.S. opposition to the emancipation of enemy slaves in wartime does not mean that Feldman is therefore right when he insists that Lincoln broke the law in order to issue the Emancipation Proclamation.  The U.S. interpretation of the laws of war in the eight decades between Independence and the Civil War was highly idiosyncratic and self-serving.  European jurists held no such view.  The U.S. posture was the position of a slave society terrified of its own internal social structure and frightened that enemies might exploit the grave vulnerability of four million enslaved people within its borders.  The Emancipation Proclamation and the 200,00 Black soldiers in the Civil War – not to mention the Lieber Code that defended both -- swung the U.S. around (at last) to the dominant view on the slavery question in the European laws of war.  Lincoln’s achievement was neither to break the law, as Feldman contends, nor to comply with it, as Oakes would have it, but to transform it.

John Fabian Witt is Duffy Class of 1960 Professor of Law and Professor of History at Yale University. You can reach him by e-mail at

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